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COPY  4 


/^ 


Author  and  Title 

United  States.  Supreme  Court. 
U.S.  Reports 


Call  Number 


KF 
101 

U55 


Volume 


215 


Copy 
4 


""*'•  SfJSKJSS*'  '•OT  CIRCULATE 
OUTIIOE  THE  BUILDING 


NAME 


LOCATION 


replacement  card 


10/16/79 


Otilted  States.  Supteaa  Coort. 
U.S.  leports 


U33!  I 


Vol, 
215 


Copy 
4 


•*  -"^   ■m^m^^^m 


UNITED  STATES  REPORTS 


VOLUME   215 


CASES  ADJUDGED 


IN 


THE  SUPREME  COURT 


AT 


OCTOBER  TERM,  1909 


CHARLES  HENRY  BUTLER 


BBPOBTBB 


THE  BANKS  LAW  PUBLISHING  CO, 

NEW  YORK 

1910 


'^^ 


1 


COPTRTOHT.  1009,  1010.  BT 

THE  BANKS  LAW  PUBLISHING  COMPANY 


^w  »'''^ 


JUSTICES 


OF  THK 


SUPREME    COURT^ 


OUBING  THE  TIME  OF  THESE  REPORTS. 


MELVILLE  WESTON  FULLER,  Chief  Justice. 
JOHN  MARSHALL  HARLAN,  Associate  Justice. 
DAVID  JOSIAH  BREWER,  Associate  Justice. 
EDWARD  DOUGLASS  WHITE,  Associate  Justice. 
RUFUS  W.  PECKHAM,^  Associate  Justice. 
JOSEPH  McKENNA,  Associate  Justice. 
OLIVER  WENDELL  HOLMES,  Associate  Justice. 
WILLIAM  R.  DAY,  Associate  Justice. 
WILLIAM  HENRY  MOODY,*  Associate  Justice. 
HORACE  HARMON  LURTON,^  Associate  Justice. 


GEORGE  WOODWARD  WICKERSHAM,  Attornbt  Gbotral. 
LLOYD  WHEATON  BOWERS,  Soucitor  Gensral. 
JAMES  HALL  McKENNEY,  Clerk. 
JOHN  MONTGOMERY  WRIGHT,  Marshal. 

^  For  allotment  of  The  Chief  Justice  and  Associate  Justices  among 
the  several  circuits  see  next  page. 

^  Mr.  Justice  Peckham  did  not  take  his  seat  on  the  bench  during 
October  Term,  1909.  He  died  at  his  home  in  Altamont  near  Albany, 
New  York,  on  Sunday,  October  24, 1909.   See  p.  v,  post, 

'  Mr.  Justice  Moody  was  absent  from  the  court  on  account  of  illness 
and  did  not  take  his  seat  upon  the  bench  until  January  31,  1910.  He 
did  not  participate  in  the  decision  of  any  of  the  cases  reported  in  this 
volume  which  were  argued  or  submitted  diuing  October  Term,  1910. 

*  Mr.  Justice  Lurton  of  Tennessee  was  appointed  to  succeed  Mr. 
Justice  Peckham  by  President  Taft  and  confirmed  by  the  Senate, 
December  20,  1909.  He  took  his  seat  on  the  bench,  January  3,  1910, 
but  took  no  part  in  the  decision  of  cases  reported  in  this  volume  which 
were  argued  or  submitted  prior  to  that  date. 


kM...        -  f 


SUPREME  COURT.  OF  THE  UNITED  STATES. 

ALLOTMENT  OF  JUSTICES,  JANUARY  10,  IQIO.^ 

Order:  There  having  been  an  Associate  Justice  of  this 
court  appointed  since  the  commencement  of  this  term. 

It  is  ordered  that  the  following  allotment  be  made  of  the 
Chief  Justice  and  Associate  Justices  of  this  court  among  the 
circuits,  agreeably  to  the  act  of  Congress  in  such  case  made  and 
provided,  and  that  such  allotment  be  entered  of  record,  viz : 

For  the  First  Circuit,  OUver  Wendell  Holmes,  Associate 

Justice. 
For   the  Second  Circuit,  Horace  H.  Lurton,  Associate 

Justice. 
For  the  Third  Grcuit,  William  H.  Moody,  Associate  Justice. 
For  the  Fourth  Circuit,  Melville  W.  Fuller,  Chief  Justice. 
For  the  Fifth  Grcuit,  Edward  D.  White,  Associate  Justice. 
For  the  Sixth  Circuit,  John  M.  Harlan,  Associate  Justice. 
For  the  Seventh  Circuit,  William  R.  Day,  Associate  Justice. 
For  the  Eighth  Circuit,  David  J.  Brewer,  Associate  Justice. 
For  the  Ninth  Circuit,  Joseph  McKenna,  Associate  Justice. 

^  For  the  last  preceding  allotment  see  2i4  U.  S.  iv. 


PROCEEDINGS  ON  THE  DEATH  OF 
MR.  JUSTICE  PECKHAM. 


SUPREME  COURT  OF  THE  UNITED  STATES, 


Monday,  October  25,  1909. 


Present:  The  Cfflsp  Justice,  Mr.  Justice  Harlan,  Mr. 
Justice  Brewer,  Mr.  Justice  White,  Mr.  Justice  Mc- 
Kenna,  Mr.  Justice  Holb^ss  and  Mr.  Justice  Day. 

The  Chief  Justice  said : 

''It  is  with  deep  sorrow  that  I  announce  the  passing  of  our 
eminent  coUea^e  and  dear  friend,  Mr.  Justice  Peckham. 
He  died  at  his  summer  home  at  Altamont  yesterday  even- 
ing, at  quarter  past  8,  The  court  will  transact  no  business, 
but  will  adjourn  until  next  Monday." 

Adjourned  imtil  Monday  next  at  12  o'clock. 

The  funeral  of  Mr.  Justice  Peckham  was  in  Albany,  New 
York,  on  October  27,  1909,  and  was  attended  by  the  Chief 
Justice  and  all  the  Associate  Justices  except  Mr.  Justice 
Moody,  who  was  detained  by  illness. 

A  meeting  of  the  Bar  of  the  Supreme  Court  of  the  United 
States  was  held  in  the  Court  Room  on  December  18,  1909. 
On  motion  of  the  Solicitor  General,  Mr.  Alton  B.  Parker  pre- 
fflded.  Addresses  were  made  by  Mr.  Alton  B.  Parker,  Mr. 
Elihu  Root,  Mr.  William  A.  Maury,  Mr.  Thomas  H.  Clark 
and  Mr.  Charles  E.  Patterson. 

A  committee  consisting  of  Mr.  Elihu  Root,  Chairman,  Mr. 
Philander  C.  Knox,  Mr.  Lloyd  W.  Bowers,  Mr.  Jacob  M,  Dick- 
inson, Mr.  William  A.  Maury,  Mr.  William  B.  Homblower,  Mr. 
John  G.  Johnson,  Mr.  Nathaniel  Wilson,  Mr.  Simon  W.  Rosen- 

V 


vi  PROCEEDINGS  ON  THE  DEATH  OF 

dale,  Mr.  Bernard  Carter,  Mr.  DeLancey  NicoU,  Mr.  Frank  P. 
Flint,  Mr.  Charles  E.  Patterson,  Mr.  William  F.  Mattingly,  pre- 
pared and  presented  resolutions  which  were  adopted,  and  the 
Attorney  General  was  requested  to  present  them  to  the  court. 


Monday,  January  10,  1910. 


Present:  The  Chief  Justice,  Mr.  Justice  Harlan,  Mr. 
Justice  Brewer,  Mr.  Justice  White,  Mr.  Justice  McKenna, 
Mr.  Justice  Holmes,  Mr.  Justice  Day  and  Mr.  Justice 

LURTOl^. 

Mr,  Attorney-General  Wickersham  addressed  the  court  as 
foUows: 

May  it  please  the  court,  I  am  requested  by  the  members  of 
the  bar  of  this  court  to  present  for  entry  upon  your  records 
the  resolutions  recently  adopted  expressing  their  profound 
sorrow  in  the  death  of  Mr.  Justice  Peckham  and  their  sin- 
cere tribute  to  his  high  character  and  eminent  service  to  the 
country.    These  resolutions  are  as  follows: 

"  Resolved,  That  the  bar  of  the  Supreme  Court  of  the  United 
States  deeply  deplore  the  death  of  Rufus  W.  Peckham,  asso- 
ciate justice  of  the  Supreme  Court,  and  desire  to  place  upon 
record  an  expression  of  the  respect  and  esteem  in  which  Jus- 
tice Peckham  was  held  and  of  regret  for  the  loss  which  the 
court,  the  bar  and  the  country  have  suffered  in  his  untimely 
death. 

"  For  twenty-four  years  he  was  an  able  and  successful  advo- 
cate at  the  bar  of  his  native  State  of  New  York.  For  twelve 
years,  by  the  election  of  his  people,  he  was  a  member  of  the 
highest  court  of  original  jurisdiction  and  of  the  court  of  last 
resort  of  that  State.  For  fourteen  years  he  sat  upon  the  bench 
of  the  Supreme  Court  of  the  United  States.  For  a  full  half 
century  he  served  the  cause  of  justice  without  fear  and  with- 
out reproach.    His  learning  and  strong  powera  of  reasoning 


MR,  JUSTICE  PECKHAM.  vii 

preserved  the  standards  of  the  law.  His  knowledge  of  affairs 
and  the  breadth  and  vigor  of  his  sjmipathies  with  the  life  and 
men  of  his  time  saved  his  judgments  from  pedantry  and  made 
them  effective  instruments  for  the  application  of  the  old  prin- 
ciples to  new  conditions.  His  published  opinions  constitute  a 
substantial  and  valuable  contribution  to  the  development  of 
American  law.  The  virile  and  courageous  independence  of  his 
strong  character,  its  integrity  and  its  purity,  created  and  justi- 
fied universal  confidence  in  his  judicial  acts.  The  influence  of 
his  life  and  the  effect  of  his  work  have  contributed  powerfully 
to  promote  that  respect  for  law  and  for  the  courts  of  our  coun- 
try which  underlies  aU  of  our  institutions. 

*' Resolved,  That  the  Attorney-General  be  asked  to  present 
these  resolutions  to  the  court,  with  the  request  that  they  be 
entered  upon  the  records,  and  that  the  chairman  of  this  meet- 
ing be  directed  to  send  to  the  family  of  the  late  Mr.  Justice 
Peckham  a  copy  of  the  resolutions  and  an  expression  of  our 
sympathy  for  them  in  the  loss  which  they  have  sustained." 

These  resolutions  of  the  bar  are  intended,  in  some  measure, 
to  express  not  alone  the  sense  of  personal  bereavement  which 
is  so  deeply  felt  by  the  immediate  friends  and  associates  of 
Mr.  Justice  Peckham,  but  a  just  and  fitting  estimate  of  his 
life  and  labors  as  they  are  known  and  esteemed  by  his  country- 
men. 

The  extent  of  the  contribution  to  the  work  of  this  court  of  a 
single  member  is  as  difficult  of  exact  ascertainment  as  is  his 
influence  upon  its  judgments.  Only  as  he  speaks  through  the 
published  opinions  which  he  is  directed  to  annoimce  can  the 
bar  or  the  people  know  the  extent  or  the  character  of  his  serv- 
ice. His  devotion  to  the  duties  of  his  high  place,  his  persua- 
sive insistence  upon  the  right  as  it  is  given  him  to  see  it,  his 
painstaking  industry,  his  aid  in  council,  his  personal  charac- 
teristics— all  these  are  attributes  which  intimate  friends  may 
know,  and  which  may  be  revealed  now  and  again  in  the 
convincing  earnestness  of  some  striking  opinion,  but  which 
have  their  full,  free  play  only  among  his  colleagues  on  the 
bench. 


viii  PROCEEDINGS  ON  THE  DEATH  OF 

Looking  back  with  this  light  upon  the  services  of  Rufus 
Wheeler  Peckham,  it  is  not  beyond  the  truth  to  say  that  in  the 
period  of  his  service  on  the  bench  no  man  contributed  more 
than  he  to  the  learning  and  development  of  the  law. 

He  came  of  a  family  of  lawyers  and  judges.  His  father,  his 
brother,  his  sons  made  this  profession  the  work  of  thdr  lives. 
Though  the  span  of  his  own  life  was  little  beyond  seventy 
years,  more  than  half  of  it  was  devoted  to  the  public  adminis- 
tration of  the  law  of  his  State  or  his  country.  Though  the 
period  of  his  service  in  this  court  was  less  than  fifteen  years,  it 
is  perhaps  not  too  much  to  say  that  in  no  other  period  of  our 
history  has  the  jurisprudence  of  the  coimtry  been  more  pro- 
foundly affected  by  the  new  conditions  and  the  new  problems 
that  have  arisen  as  incident  to  our  national  growth  and  de- 
velopment. It  has  been  largely  during  these  fifteen  years  that 
the  graver  questions  involved  in  the  effort  of  the  National 
Government  to  cope  with  the  great  industrial  problems  arising 
out  of  our  imexampled  commercial  expanaon  have  found  thdr 
way  to  this  court.  It  has  been  wholly  within  these  fifteen 
years  that  our  relations  with  foreign  possessions  and  the  in- 
terpretation of  our  laws  for  the  government  of  alien  peoples 
have  been  here  debated  and  determined. 

In  this  work  Ma.  Justice  Peckham  did  his  full  share.  No 
one  can  examine,  even  cursorily,  the  deliverances  of  this  court 
during  the  last  decade  and  a  half  without  being  impressed  by 
the  tremendous  volume  of  it  which  came  from  his  hand  and 
brain.  In  that  time  he  wrote  nearly  four  hundred  opinions. 
They  dealt  with  every  aspect  of  the  law.  But  more  striking 
than  the  number  is  the  fact  that  so  many  of  them  are  to-day, 
and  will  ever  remain,  the  leading  and  familiar  cases  upon  the 
great  questions  with  which  they  dealt.  No  tribute  to  the  life 
and  work  of  Mr.  Justice  Peckham  could  find  a  higher  sanc- 
tion than  the  mere  citation  of  his  opinions  in  such  cases  as 
Maxwell  v.  Dow,  Hopkins  v.  United  States,  the  Addyston  Pipe 
case,  the  Trans-Missouri  and  the  Joint  Traffic  Association 
cases,  Montague  v.  Lowry,  Lochner  v.  New  York,  Ex  parte 
Young,  which  reveal  his  great  learning  and  industry. 

But  we  can  not  gamer  up  his  work  as  men  would  bind  the 


MR.  JUSTICE  PECKHAM.  ix 

harvest  of  a  season.  It  has  enriched  the  whole  field  of  our 
national  jurisprudence,  and  for  aU  time  the  yield  will  be  the 
better  for  his  labor. 

If  it  please  the  court,  I  have  the  honor  to  move  that  the 
resolutions  adopted  by  the  bar  be  entered  at  laige  upon  the 
records  of  this  court. 

The  Chief  Justice  responded : 

The  resolutions  and  the  remarks  by  which  they  are  accom- 
panied will  be  spread  upon  our  records  as  deserved  tributes  to 
the  memory  of  the  brother  who  has  so  recently  been  taken 
from  us.  Whatsoever  things  are  true  and  honest,  just  and  of 
good  report,  these  are  the  things  which  the  record  of  the  life  of 
Mr.  Justice  Peckham  displays.  Its  most  striking  charac- 
teristic is  the  singlemindedness  of  his  devotion  to  judicial 
dutjr.  It  may  be  said  of  him  as  it  was  of  Mr.  Justice  Story 
that  'Mn  all  his  commerce  with  the  world  and  in  his  intercourse 
with  the  circle  of  his  friends  the  predominance  of  his  judicial 
character  was  manifest."  He  discharged  his  judicial  duties 
not  as  upon  compulsion,  but  because  he  loved  them.  It  ran 
in  his  blood,  and  he  profoimdly  believed  that  justice  was  'Hhe 
great  interest  of  man  on  earth." 

''As  a  man  thinketh,  so  is  he,"  and  as  this  man  was,  so  was 
his  style,  simple,  forcible,  and  direct.  He  aimed  to  do  sub- 
stantial justice  in  an  intelligible  way,  dealing  in  no  strained 
inferences,  nor  muddling  definite  results  by  qualifjdng  his 
qualifications. 

His  opinions  from  the  first  in  volume  160  of  our  reports  to 
the  last  in  volume  214  are  all  lucid  expositions  of  the  matter  in 
hand,  and  many  of  them  of  peculiar  gravity  and  importance  in 
the  establishment  of  governing  principles.  He  sought  to  avoid 
the  curse  denounced  on  the  removal  of  landmarks  while  merit- 
ing the  blessing  accorded  to  their  wise  reinforcement.  His 
death  is  a  serious  loss  to  the  cause  of  jurisprudence,  to  this 
court,  and  to  his  country.  I  cannot  trust  myself  to  speak  of 
the  loss  to  his  brethren  of  this  lovable  and  beloved  comrade. 
We  cannot  but  be  exceeding  sorrowful  as  we  recall  the  touch 


\ 


PRWKKDINGS  ON  THE  DEATH  OF 


\^l  Uu^  vtauiihi'U  haiul  and  the  sound  of  the  voice  that  is  still. 
*  l.o(  Ufei  aliUH)/'  sang  the  Lotos-Eaters^  ''what  is  it  that  will 
ii^t,"^''  We  tind  the  answer  in  the  example  of  this  distin- 
jiuiiihtHl,  faithful,  and  thorough  life  which,  "though  the  whole 
wiurW  turo  to  coal,  then  chiefly  lives." 

Mr,  KUhu  Root  presented  to  the  court  the  resolutions 
adopted  at  a  meeting  of  the  members  of  the  bar  of  the  State 
of  New  York  in  memory  of  Mr.  Justice  Peckham,  and  it  was 
ordered  that  they  be  placed  on  file. 

They  are  as  follows : 

New  York  State  Bar  Association. 

To  The  New  York  State  Bar  Association  : 

The  undersigned,  appointed  as  Committee  to  present  Reso- 
lutions to  this  Association  with  regard  to  the  late  Mr.  Justice 
Peckham,  hereby  present  the  accompanying  Resolutions. 
Dated  December  9,  1909. 

William  B.  Hornblower, 

Chairman. 
Joseph  H.  Choate, 
Alton  B.  Parker, 
Louis  Marshall, 
Francis  Lynde  Stetson, 
John  G.  Milburn, 

Committee. 

Resolutions  adopted  by  the  New  York  State  Bar  Associ- 
ation at  a  special  meeting  held  in  the  city  of  Albany  on  the 
evening  of  Thursday,  December  9,  1909 : 

Resolved,  That  the  New  York  State  Bar  Association  desires 
to  express  its  profound  sense  of  the  great  loss  which  the  Ju- 
diciary, the  Bar  and  the  public  at  large  have  suffered  by  the 
death  of  Mr.  Justice  Rufus  W.  Peckham,  Associate  Justice 
of  the  Supreme  Court  of  the  United  States.  The  members  of 
the  Bar  of  this,  his  native  State,  feel  that  loss  in  a  peculiar 
and  sp)ecial  degree,  and  we  adopt  the  following  memorial  to  be 
spread  upon  our  minutes. 


MR.  JUSTICE  PECKHAM.  xi 

Rufus  W.  Peckham  was  bom  in  the  city  of  Albany  in  1838. 
He  was  the  son  of  one  of  our  most  distinguished  jurists,  who 
rounded  out  his  career  by  serving  upon  the  Bench  of  the  high- 
est court  of  the  State,  and  whose  life  was  cut  short,  while  still 
in  the  full  vigor  of  his  powers,  by  a  terrible  catastrophe  at  sea. 
Bearing  his  father's  name  and  strongly  resembling  him  in  his 
physical,  mental  and  moral  characteristics,  Rufus  W.  Peck- 
ham  had  an  hereditary  claim  to  the  regard  and  esteem  of  his 
fellow-citizens  of  this  State.  His  is  one  of  the  rare  instances 
in  which  the  honors  of  the  father  have  descended  naturally  to 
the  son.  He  and  his  elder  brother,  Wheeler  H.  Peckham,  be- 
came eminent  members  of  the  profession,  and  achieved  for 
themselves  a  distinction  worthy  of  that  which  had  been  be- 
queathed to  them  by  their  father. 

Rufus  W.  Peckham  practised  law  for  many  years  in  the 
city  of  Albany  with  ability  and  success.  He  was  a  man  of  vig- 
orous and  forceful  character;  frank  and  outspoken  and  coura- 
geous in  every  relation  of  life.  In  the  practice  of  his  profes- 
sion he  won  the  respect  and  admiration  of  his  brethren  of  the 
Bar,  the  members  of  the  Bench  and  the  public  at  large. 

He  was  elected  a  justice  of  the  Supreme  Court  of  this  State 
more  than  twenty-five  years  ago,  and  until  his  death  he  re- 
m^dned  continuously  in  judicial  office,  so  that  to  very  few  of 
the  members  of  this  Association  was  he  known  otherwise  than 
as  a  judge,  and  for  most  of  us  it  is  difficult  to  think  of  him 
except  as  we  remember  him  in  the  performance  of  his  judi- 
cial functions,  or  as  we  met  him  personally  and  socially,  from 
time  to  time,  during  his  judicial  career. 

Elected  to  the  Supreme  Court  of  this  State  in  1883;  trans- 
ferred to  the  Court  of  Appeals  of  the  State,  January  1,  1887, 
and  to  the  Supreme  Court  of  the  United  States  in  January, 
1896,  and  djdng  in  the  full  vigor  of  his  ripe  manhood  in  1909, 
while  still  serving  on  the  Bench,  he  has  been  to  the  members 
of  the  Bar  of  this  State  for  a  quarter  of  a  century  our  ideal 
of  judicial  character  and  conduct.  His  intellectual  perceptions 
were  keen  and  p)enetrating ;  his  power  of  analysis  of  intricate 
questions  of  fact  and  law  were  unexcelled;  his  terse,  forcible 
and  vigorous  expressions  of  his  conclusions,  as  embodied  in 


xii  PROCEEDINGS  ON  THE  DEATH  OF 

the  opinions  which  he  from  time  to  time  delivered  in  the  va- 
rious courts  of  which  he  was  a  member,  will  always  remain  to 
illmninate  the  path  of  searchers  for  the  doctrines  of  our  ju- 
risprudence, as  set  forth  in  judicial  decisions.  His  absolute 
and  unyielding  impartiality  and  integrity  were  such  marked 
characteristics  that  it  was  impossible  for  any  one  to  so  much 
as  suspect  that  he  was  conscious  of  either  fear  or  favoritism, 
no  matter  who  were  engaged  in  a  cause  before  him,  or  what 
might  be  the  interests  involved.  It  was  impossible  for  Rufus 
W.  Peckham  to  think  except  in  a  straight  line  from  premise 
to  conclusion,  according  to  the  logic  and  reason  of  the  case  as 
he  saw  them.  All  must  agree  that  the  conclusions  reached  by 
Judge  Peckham  were  the  honest  conclusions  of  an  open- 
minded  judge,  and  they  were  expressed  in  clear  and  convincing 
language  which  bespoke  the  sincerity  and  the  ability  of  the 
man. 

Not  only  was  Judge  Peckham  our  ideal  of  a  judge  in  abil- 
ity, character  and  conduct,  but  he  had  the  judicial  manner 
upon  the  Bench;  always  courteous  yet  dignified;  his  occasional 
colloquies  with  counsel  arguing  before  the  court  were  always 
with  the  purpose  of  acquiring  information  or  obtaining  the 
views  of  counsel,  and  not  with  the  purpose  of  indulging  in  con- 
troversy. His  keen  and  incisive  questions  to  counsel  left  no 
doubt  of  his  deare  to  arrive  at  the  very  truth  of  the  case,  and 
left  no  sting  behind. 

And  now,  what  shall  we  say  of  Judge  Peckham  as  a  man 
and  as  a  friend?  As  we  have  already  said,  there  are  few  of  us 
who  can  remember  him  in  the  days  before  he  became  a  judge 
in  the  freedom  from  restraint  and  reserve  of  ordinary  profes- 
sional life.  But,  to  those  of  us  who  knew  him  only  as  a  judge, 
when  he  was  surrounded  to  some  extent  by  that  undefined, 
but  always-felt  distinction  between  the  Bench  and  the  Bar, 
Judge  Peckham  preserved,  even  after  he  became  a  Justice  of 
the  Supreme  Court  of  the  United  States,  a  geniality  and  a 
kindliness  which,  in  social  intercourse,  made  him  peculiarly 
attractive.  We  would  not  call  him  affable,  for  that  implies  a 
certain  amount  of  condescension,  and  there  was  nothing  of 
condescension  about  Rufus  Peckham.    He  never  seemed  con- 


MR.  JUSTICE  PECKHAM.  xiii 

• 

scious  of  his  honors,  nor  did  he  feel  it  necessary  to  maintain  an 
attitude  of  judicial  reserve,  but  to  his  dying  day  he  was  the 
same  hearty,  outspoken,  warm-hearted  Rufus  Peckham  that 
some  of  us  knew  in  our  earlier  days. 

It  is  hard  for  us  to  realize  that  the  life  and  the  judicial 
career  of  this  eminent  son  of  New  York  State  are  at  an  end. 
His  sturdy  inteUectual  honesty,  his  absolute  and  exclusive  de- 
votion to  judicial  duty,  and  his  sterling  common  sense,  made 
him  an  invaluable  member  of  the  great  tribunal  which  he  so 
fitly  graced.  The  influence  which  he  has  exerted  upon  the 
jurisprudence  of  this  State  and  of  this  country  cannot  be  over- 
estimated. As  has  been  frequently  remarked,  it  is  one  of  the 
advantages  which  the  judicial  function  possesses  over  that  of 
the  advocates  of  the  Bar,  that  while  the  fame  of  the  latter  van- 
ishes, with  rare  exceptions,  with  the  brain  and  the  voice  which 
gave  it  life,  the  fame  of  the  former  is  written  imperishably  in 
the  volumes  of  official  reports,  which  will  be  handed  down 
from  generation  to  generation.  The  name  and  the  fame  of 
Rufus  W.  Peckham  will  last  as  long  as  the  decisions  of  the 
Court  of  Appeals  of  this  State  and  of  the  Supreme  Court  of  the 
United  States  are  quoted  as  authority. 

This  Association  extends  to  the  bereaved  widow  and  family 
our  deepest  and  profound  S3mipathy,  and  begs  to  assure  them 
that  the  members  of  the  Bar  of  this  State  are  fellow-mourners 
with  them  in  their  great  loss. 

I  hereby  certify  that  the  foregoing  is  a  correct  copy  of  the 
Resolutions  adopted  upon  the  report  of  the  Committee,  ap- 
pended hereto,  at  the  special  meeting  of  the  New  York  State 
Bar  Association,  called  to  commemorate  the  life  and  services 
of  the  late  Mr.  Justice  Peckham,  which  meeting  was  held  on 
Thursday,  December  9, 1909,  in  the  Assembly  Chamber  in  the 
Capitol  in  the  city  of  Albany,  N.  Y. 

[seal.]  Frederick  E.  Wadhams, 

Secretary. 

Dated  Albany,  N.  Y.,  December  16, 1909. 


SUPREME  COURT  OF  THE  UNITED  STATES. 

Amendment  to  sec.  7  of  rule  24.^ 

October  Term,  1909. 

ORDER. 

It  is  ordered  by  the  court  that  §  7  of  rule  24  be,  and  the  same 
is  hereby,  amended  so  as  to  read  as  follows: 

"For  preparing  the  record  or  a  transcript  thereof  for  the 
printer,  indexing  the  same,  supervising  the  printing,  and  dis- 
tributing the  printed  copies  to  the  justices,  the  reporter,  the 
law  library,  and  the  parties  or  their  counsel,  fifteen  cents  per 
folio;  but  when  the  necessary  printed  copies  of  the  record,  as 
printed  for  the  use  of  the  lower  court,  shall  be  furnished,  the 
fee  for  supervising  shall  be  five  cents  per  folio. 

"  For  every  printed  copy  of  any  opinion  of  the  C!ourt  or  any 
justice  thereof,  certified  under  seal,  two  dollars." 

(Promulgated  January  10,  1910.) 

^  For  all  rules  of  the  Supreme  Court  of  the  United  States  see  210  U.  S. 
441. 


xiv 


TABLE  OF  CONTENTS. 


TABLE  OF  CASES  REPORTED. 


PAOB 


Abril  V.  Modesto  Cobian  y  Muniz 612 

Acord  V.  Western  Pocahontas  Corporation    .        .        .    607 
Adelbert  College   of  Western   Reserve  Univeraity  v. 

Wabash  Railroad  Company 598 

iEtna  Indemnity  Company  v.  Farmers'  National  Bank 

of  Boyertown 601 

Albany  &  Susquehanna  Railroad  Company,  Delaware 

&  Hudson  Company  v 601 

American    Bonding   Company   of   Baltimore,    United 

States  V 616 

'                American  Exchange  National  Bank's  Receiver,  Ken- 
yon  t; 693 

American  Lava  Company,  Kirchberger  v.      .        .        .    161 

I  American  Lava  Company,  Steward  v 161 

American  Manufacturing  Company  v.  The  Steamship 

j  Wildenfels 697 

I  American    National    Bank    of   Abilene,    Receiver   of, 

I  Hanover  National  Bank  of  New  York  v.   .  110,  122 

American  Trust  Company  of  Boston  v.  W.  &  A.  Fletcher 

Company 600 

American  Wood  Working  Machinery  Company  v.  The 

Union  Trust  Company 696 

Anderson  v.  United  States 618 

Androvette  v.  Steamship  Baralong      ....    600 

Ashbum,  Graves  v 331 

Atchison,  Topeka  <fe  Santa  Fe  Railway  Company  v. 

Kckens 617 

Atchison,  Topeka  &  Santa  Fe  Railway  Company  v. 

Sewell 612 

(XV) 


xvi  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

Atlantic  Coast  Line  Railroad  Company  v.  Geraty  .  616 
Atlantic  Coast  Line  Railroad  Company,  Macon  Grocery 

Company  v 501 

Atlantic   Mutual  Insurance  Company,   Hood  Rubber 

Company  v 601 

Axman,  United  States  v 617 

Bach  Fur  Company,  Pfaelzer  v 584 

Baltimore  &  Ohio  Railroad  Company,  Haynes  v.        .  608 
Baltimore  &  Ohio  Railroad  Company  v.  Interstate  Com- 
merce Commisfflon 216 

Baltimore  &  Ohio  Railroad  Company  v.  United  States 

ex  rd.  Ktcaim  Coal  Company      ....  481 
Bank  (American  Nat.,  of  Abilene),  Hanover  National 

Bankt? 110,  122 

Bank  (Citizens'  Sav.),  City  of  NewburjTport  v.    .        .  598 

Bank  (Collin  Co.  Nat.),  Hughes  v 618 

Bank  (Farmers'  Nat.),  iEtna  Indemnity  Company  v.  601 

Bank  (Rrst  Nat.)  v.  Estherville 341 

Bank  (Hanover  Nat.)  v.  Suddath    ....    110,  122 
Bank  and  Trust  Company  (Canal-Louisiana),  Water- 
man V 33 

Baralong,  The,  Androvette  v 600 

Barker  v.  Butte  Consolidated  Mining  Company    .        .  584 

Baruch,  United  States  v 610 

Bayamo,  The,  Jacksonville  Towing  &  Wrecking  Com- 
pany v 606 

Bergan,  Fries-Breslin  Company  v 609 

Berger  v,  Tracy 594 

Boland  v.  The  Steam  Vessel  Oceanica    ....  599 
Brandenstein,    Helvetia-Swiss    Fire    Insurance    Com- 
pany V 588 

Brenizer,  Royal  Arcanum  v 612 

Brill  V.  Washington  Railway  and  Electric  Company      .  527 

Brown,  Huey  v 598 

Buck's  Stove  &  Range  Company,  Gompers  v.        .        .  605 


TABLE  OF  CONTENTS.  xvu 

Table  of  Cases  Reported. 

PAOB 

Butte  Consolidated  Mining  Company,  Barker  v.         .    584 


Calderon,  The,  New  York,  New  Haven  &  Hartford 

Railroad  Company  v 599 

California  Development  Company  v»   New  Dverpool 

Salt  Company 603 

California  Development  Company,  New  Liverpool  Salt 

•     Company  v 606 

Caliga  V,  Inter  Ocean  Newspaper  Company            .        .  182 
Canal-Louisiana  Bank  and  Trust  Company,  Executor, 

Waterman  v. 33 

Cardwell  v.  United  States 599 

Castleman,  Mechanical  Appliance  Company  v.    .        .  437 

Celestine,  United  States  v 278 

Central    of    Georgia    Railway    Company    v.    Wright, 

Comptroller-General  of  Georgia       ....  617 
Chapman,  Yellow  Poplar  Lumber  Company  v.    .        .  601 
Chicago  &  Alton  Railroad  Company,  Interstate  Com- 
merce Commission  v 479 

Chicago  Great  Western  Railway  Company's  Receivers, 

Interstate  Commerce  Commission  v.      .        .        .98 
Chicago,   Rock   Island  &  Pacific  Railway  Company, 
Ludwig,  as  Secretary  of  State  of  the  State  of 

Arkansas,  v 615 

Citizens'  Savings  Bank,  City  of  Newburyport  v.    .        .  598 

CSty  of  Melrose,  Dyer  v 594 

City  of  Minneapolis  v.  Minneapolis  Street  Railway  Com- 
pany         417 

City  of  Murfreesboro,  Nelson  v 617 

CSty  of  Newburyport  v.  Citizens'  Savings  Bank    .        .  598 

City  of  New  Orleans,  Louisiana  ex  rd.  Hubert  v.        .  170 

CSty  of  Ottumwa,  International  Textbook  Company  v.  614 

City  and  County  of  San  Francisco,  Eddy  v,        .        .  604 

CSty  Council  of  Estherville,  ISrst  National  Bank  v.        .  341 

Coal  Company  (Dering)  v.  Hutton       ....  604 

Coal  Company  (Fairmont)  Kuhn  v.         ....  349 


xviii  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

PAOX 

Coal  Company  (Pitcaim)  Baltimore  &  Ohio  Railroad 

Company  v 481 

Coal  Company  (Richmond)  Commercial  Union  Assur- 
ance Company  v 609 

Cobian  y  Muniz,  Abril  v 612 

Coffield  V,  Fletcher  Manufacturing  Company        .        .    603 
Coler  (New  Mexico  ex  rd,),  Commissioners  of  Santa  Fe 

County  V 296 

Collier,  Goessling  v 596 

Collin  County  National  Bank,  Hughes  v.      ,        .        .    618 
Commerce  Commission,  Baltimore  and  Ohio  Railroad 

.  Company  v 216 

Commerce  Commission  v.  Chicago  &  Alton  Railroad 

Company 479 

Commerce  Commission  v.  Illinois  Central  Railroad  Com- 
pany        452 

Commerce  Commission,  Southern  Pacific  Company  v.    226 
Commerce  Commission  v,  Stickney  and  others,   Re- 
ceivers of  the  Chicago  Great  Western  Railway 

Company 98 

Commercial  Mica  Company  v.  Mica  Insulator  Company    604 
Commercial  Union  Assurance  Company  v.  Richmond 

Coal  Company 609 

Commissioners  of  the  District  of  Columbia,  Washington 

Gas  Light  Company  v 614 

Commissioners  of  Lincoln  Park  v.  Westrumite  Company 

of  America 610 

Commissioners  of  Santa  F^  County  v.  Territory  of  New 

Mexico  ex  reL  Coler 296 

Comptroller-General   of   Georgia,    Central   of  Geor^a 

Railway  Company  v 617 

Consolidated  Barb  Wire  Company's  Receiver,  Henley  v.    373 
Corbett  v.  Craven.     See  Kenney  v.  Craven        .        .    125 

Corbett,  United  States  v 233 

Cox  V.  Hoy,  United  States  Marshal  for  tho  Northern 

District  of  Illinois 619 


TABLE  OF  CONTENTS.  xix 
Table  of  Cases  Reported. 

PAttB 

Craven,  Corbett  v.    See  Kenney  v.  Craven    .        .        .  125 

Craven,  Kenney  v 125 

Creecy,  Marbles  v 63 

Crook  V.  International  Trust  Company  of  Maryland    .  613 

Cudahy  Packing  Company  v.  State  of  Minnesota  .  618 
Cmnberland  Lumber  Company,  Tunis  Lumber  Company 

V 603 

Davis  t;.  United  States 607 

Delaware  &  Hudson  Company  v.  Albany  &  Susquehanna 

Railroad  Company 601 

Dering  Coal  Company  v.  Hutton 604 

De  Winter,  Thomas  t; 609 

District  of  Columbia  Commissioners,  Washington  Gas 

Light  Company  v 614 

Dobrinski,  Haffner  v 446 

DuBois  Sons  Company  v.  Steam  Tug  Eugene  F.  Moran  596 
DuBois  Sons  Company  v.  New  York  Central  4  Hudson 

River  Railroad  Company 596 

Dufaur  v.  United  States 615 

Dyer  t;.  City  of  Melrose 594 

Eastin,  Fall  v 1 

Eddy  V.  City  and  County  of  San  Francisco  .  •  ,  604 
Edison  Electric  Light  Company,  Novelty  Licandescent 

Lamp  Company  v .  596 

Elias  V.  Ramirez 398 

El  Paso  &  Northeastern  Railway  Company  v.  Gutierrez  87 

Equitable  Life  Assurance  Society,  Keiper  v.                .  606 

Estherville,  First  National  Bank  v 341 

Eugene  F.  Moran,  The,  Henry  DuBois  Sons  Company  v.  596 

Everett  V.  Everett 203 

Ex  parte  United  States  Consolidated  Seeded  Raisin 

Company 591 

Fairmont  Coal  Company,  Kuhn  v 349 

Fairmont  Coal  Company  v.  Merchants'  Coal  Company  614 


XX  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

PAOX 

Fall  V.  Eastin 1 

Farmers'  National  Bank  of  Boyertown,  /Etna  Indemnity 

Company  v 601 

Ferrell,  Frame  v 605 

Ferryboat  Lackawanna,  Harris  v.          ....  597 

flanza,  Reavis  v 16 

Fire  Insurance  Company  (Helvetia-Swiss)  v.  Brandenstein  588 

First  National  Bank  v.  City  Council  of  Estherville        .  341 

Flaherty  (North  Dakota  ex  rd,)  v.  Hanson    .        .        .  515 

Fleming  v.  McCurtain 56 

Fletcher  Company,  American  Trust  Company  v.        .  600 

Fletcher  Manufacturing  Company,  CoflBeld  v.    .        .  603 

Folmina,  The,  V.  Jahn    .  ' 608 

Fomoff,  Mullen  v. 615 

Fowler,  Receiver  of  American  Exchange  National  Bank 

of  Syracuse,  Kenyon  v 593 

Fox,  Stanclift  v 619 

Freeman,  United  States  v 602 

Fries-Breslin  Company  v,  Bergan 609 

Gassert,  Strong  v. 583 

Geraty,  Atlantic  Coast  Line  Railroad  Company  v.        .  616 

Goessling  v.  Collier 596 

Gompers  v.  Buck's  Stove  &  Range  Company        .        .  605 

Graham,  Peale,  Peacock  &  Kerr  v 607 

Grand  Lodge  of  Kentucky,  Free  and  Accepted  Masons, 

Weber  v. 606 

Graves  v.  Ashbum 331 

Greenwood,  Watson  v 599 

Griesa,  Mutual  life  Insurance  Company  v.    .        .        .  600 
Guaranty  Trust  Company  v.  Metropolitan  Street  Rail- 
way Company 587 

Guaranty  Trust  Company  of  New  York  v.  Metropolitan 

Street  Railway  Comp?iny 603 

Guaranty  Trust  Company  of  New  York,  Morton  Trust 

Company  v 603 


TABLE  OF  CONTENTS.  xxi 

Table  of  Casea  Reported. 

Gutierrez,  El  Paso  &  Northeastern  Railway  Company  v.      87 


Hadley  v.  Scoville 612 

Haflfner  v.  Dobrinski 446 

Halligan  v.  Trinidad  Shipping  &  Trading  Company        .  614 
Hanover  National  Bank  of  New  York  v.  Suddath,  Re- 
ceiver of  American  National  Bank  of  Abilene    110,  122 
Hanson,  Sheriff  of  Grand  Forks  County,  The  State  of 

North  Dakota  ex  rd.  Flaherty  v.        .        .        .  515 
Harris,  Late  Owner  of  the  Steam  Tug  De  Veaux  Powel, 

V.  The  Ferryboat  Lackawanna      ....  597 

Harris,  Union  Pacific  Railroad  Company  v.        .        .  386 

Haskell  (Oklahoma  ex  rd.),  Huston  v 592 

Hawaii,  Lowrey  v 554 

Ha3mes  v,  Baltimore  &  Ohio  Railroad  Company             .  608 
Helvetia-Swiss  Fire  Insurance  Company  v,  Brandenstein  588 
Henderson-White  Manufacturing  Company,  Ward  Lum- 
ber Company  t; 612 

Henley  v.  Myers,  Receiver  of  Consolidated  Barb  Wire 

Company 373 

Henry  DuBois  Sons  Company  v.  Steam  Tug  Eugene  F. 

Moran 596 

Henry  DuBois  Sons  Company  v.  New  York  Central  & 

Hudson  River  Railroad  Company    ....  596 

Herbert,  Wagg  v 546 

ICnes,  Scott  County  Macadamized  Road  Company  v.  336 
Hitchcock,  Secretary  of  the  Interior,  Irrigation  Land  & 

Improvement  Company  v 613 

Hobbs,  Hub  Construction  Company  v 598 

Hood  Rubber  Company  v,  Atlantic  Mutual  Insurance 

Company 601 

Hoy,  United  States  Marshal  for  the  Northern  District  of 

Illinois,  Cox  v 619 

Hub  Construction  Company  v.  Hobbs    ....  598 
Hubert  (Louisiana  ex  rd.)  v.  Mayor  and  Council  of  New 

Orleans 170 


xxu  TABLE  OF  CONTENTS. 

Table  of  CSaaes  Reported. 

Huey  V.  Brown 598 

Hughes  V.  Collin  County  National  Bank  .  .  .  618 
Huston,  Judge,  v.  State  of  Oklahoma  ex  rd.  Haskell, 

Governor 692 

Hutton,  Dering  Coal  Company  v 604 

Hygienic  Chemical  Company  of  New  Jersey,  Rumford 

Chemical  Works  v, 156 

Hy^enic  Chemical  Company  of  New  York  v.  Rumford 

Chemical  Works 156 

Ibex  Mining  Company,  Van  Sice  v 607 

Illinois  Central  Railroad  Company,   Interstate  Com- 
merce Commission  v 452 

Illinois  Central  Railroad  Company  v,  Sheegog  .  .  308 
Indemnity   Company    (iEtna)    v.    Farmers'    National 

Bank  of  Boyertown 601 

Insular  Government  of  the  Philippine  Islands,  Tlglao  v.  410 
Insurance  Company  (Atl.  Mut.),  Hood  Rubber  Com- 
pany!;   601 

Insurance  Company  (Helvetia-Swiss)  v.  Brandenstein  588 

Insurance  Company  (Liverpool  &L.&  G.)  v.  McFadden  604 

Insurance  Company  (Met.  life)  v.  Williamson  .  608 

Insurance  Company  (Mut.  life  of  N.  Y.)  v.  Griesa  .  600 
Interior    Construction    and    Improvement    Company, 

Lathrop,  Shea  &  Henwood  Company  v.  .  246 

International  Textbook  Company  v.  City  of  Ottumwa  614 

International  Trust  Company,  Crook  t?.       .        .        .  613 

Inter  Ocean  Newspaper  Company,  Caliga  v.  .  .  182 
Interstate  Commerce  Commission,  Baltimore  and  Ohio 

Railroad  Company  v 216 

Interstate  Commerce  Commission  v.  Chicago  4  Alton 

Railroad  Company 479 

Interstate  Commerce  Commission  v,  Illinois  Central 

Railroad  Company 452 

Interstate   Commerce    Commission,    Southern    Pacific 

Company  v 226 


TABLE  OF  CONTENTS,  xxiU 
Table  of  Cases  Reported. 

rAOB 

Interstate    Commerce    Commission    v.    Stickney    and 
others,  Receivers  of  the  Chicago  Great  Western 

Railway  Company 98 

Iowa,  Thomas  v 591 

Irrigation  Company  (Rio  Grande)  v.  United  States        .  266 
Irrigation  Land  &  Improvement  Company  v.  Hitchcock, 

Secretary  of  the  Interior 613 

Jacksonville  Towing  &  Wrecking  Company  v.  Steam- 
ship Bayamo 606 

m 

Jahn,  Steamsliip  Folmina  v 608 

JeflFerson,  The 130 

Jefferson,  The,  Simmons  v.    See  Steamship  Jefferson    .  130 

Jerome  H.  Remick  &  Company  v.  Stem      .        .        .  585 

Johnson,  Mills  v 590 

Julian,  Kansas  City  Star  Company  v.        .        .        .  589 

Kansas,  Plamondon  v 615 

Kansas  City  Star  Company  v.  Julian     .        .        .        .  589 

Keiper  v.  Equitable  Life  Assurance  Society        .        .  606 

Kenney  v.  Craven 125 

Kentucky,  Rand,  McNally  &  Co.  i; 582 

Kenyon  v.  Fowler,  Receiver  of  American  Exchange 

National  Bank  of  Syracuse 593 

Kerrch  v.  United  States 602 

King  V.  State  of  West  Virginia 616 

Kirchberger  v.  American  Lava  Company      .        .  161 

Kirven,  Virginia-Carolina  Chemical  Company  v.        .  252 

Komada  &  Co.  v.  United  States 392 

Kuhn  v.  Fairmont  Coal  Company 349 

Kuykendall  v.  Union  Pacific  Railroad  Company        .  602 

Lackawanna,  The,  Harris  v 597 

Ladd,   Metropolitan  Securities  Company  v.                .  603 
Land  Conmiissioner  of  the  State  of  Washington,  Mc- 

Gilvra  and  Bressler  v 70 


xxiv  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

PAGE 

Lane  Bros.  Co.,  Virginia  Passenger  &  Power  Co.  v.  .  610 
Lathrop,  Shea  &  Henwood  Company  v.  Literior  Con- 
struction and  Improvement  Company  .  .  .  246 
Lava  Company  (American),  Kirchbeiger  v.  .  .  161 
Lava  Company  (American),  Steward  v.  .  .  ,  161 
life  Assurance  Society  (Eq.),  Keiper  v.  .  .  .  606 
life  Insurance  Company  (Met.)  v.  Williamson  .  .  608 
Life  Insurance  Company  (Mutual  of  N.  Y.)  v.  Griesa  .  600 
Lincoln  Park  Commissioners  v.  Westrumite  Company 

of  America 610 

Liverpool  and  London  and  Globe  Insurance  Company 

V.  McFadden 604 

Louisiana  ex  rd.  Hubert,  Receiver,  v.  Mayor  and  Coun- 
cil of  New  Orleans   170 

Lowrey  v.  Territory  of  Hawaii 554 

Ludowici-Celadon  Company  (United  States  for  use  of), 

Mankint; 533 

Ludwig,  as  Secretary  of  State  of  the  State  of  Arkansas, 

V.  Chicago,  Rock  Island  <&  Pacific  Railway  Company    615 
Lumber  Company  (Cumberland),  Tunis  Lumber  Com- 
pany!;  603 

Lumber  Company  (Tunis)  v,  Cumberland  Lumber  Com- 
pany        603 

Lumber  Company  (Ward)  v,  Henderson-White  Manu- 
facturing Company 612 

Lumber  Company  (Yellow  Poplar)  v.  Chapman    .        .    601 

McBride,  Nowell  v 602 

McCurtain,  Fleming  v 56 

McFadden,  Liverpool  and  London  and  Globe  Insurance 

Company  v 604 

Macfarland  et  al.,  Commissioners  of  the  District  of 

Columbia,  Washington  Gas  light  Company  v.  .  614 
McGilvra  and  Bressler  v.  Ross,  State  Land  Commissioner 

of  the  State  of  Washington 70 

MacKenzie  v.  MacKenzie 582 


TABLE  OF  CONTENTS.  xxv 

Table  of  Cases  Reported. 

PAGB 

Macon  Grocery  Company  v.  Atlantic  Coast  line  Rail- 
road Company 501 

Majors  v,  Williamson 597 

Mankin  v.  United  States  for  the  use  of  Ludowici- 

Celadon  Company 533 

Marbles  v.  Creecy,  Chief  of  Police 63 

Mayor  and  Council  of  the  City  of  New  Orleans,  Louis- 
iana ex  rd.  Hubert  v 170 

Mechanical  Appliance  Company  v.  Castleman                .  437 

Melrose,  Dyer  v 594 

Merchants'  Coal  Company,  Fairmont  Coal  Company  v.  614 

Mescall,  United  States  v 26 

Metropolitan  Life  Insurance  Company  v.  Williamson    .  608 

Metropolitan  Securities  Company  v.  Ladd                     .  603 
Metropolitan  Street  Railway  Company,  Guaranty  Trust 

Company  V 587,  603 

Mexican  Central  Railway  Company,  Pyman  Steamship 

Company  v 597 

Mica  Insulator  Company,  Commercial  Mica  Company  v.  604 

Mills  V.  Johnson 590 

Mining  Company  (Butte  Cons.),  Barker  v.    .        .        .  584 

Mining  Company  (Ibex),  Van  Sice  v 607 

Mining  Company  (North  Carolina)  v,  Westfeldt    .        .  586 
Minneapolis  v.  Minneapolis  Street  Railway  Company    .  417 
Minneapolis  Street  Railway  Company,  CSty  of  Minne- 
apolis!;.            417 

Minnesota,  Cudahy  Packing  Company  v.        .        .        .  618 
Missouri  ex  rd.  Hines,  Scott  County  Macadamized  Road 

Company  v 336 

Modesto  Cobian  y  Muniz,  Abril  v 612 

Monmouth  Steamboat  Company,  Perth  Amboy  Dry 

Dock  Company  v 592  • 

Morse  v.  United  States 605 

Morton  Trust  Company  v.  Guaranty  Trust  Company  of 

New  York .  603 

Mullen  V.  Fomoff 615 


xxvi  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

Murfreesboro,  Nelson  v 617 

Mutual  life  Insurance  Company  v.  Griesa                     .  600 
Myers,  Receiver  of  Consolidated  Barb  Wire  Company, 

Henley  v 373 

National  Bank  (American,  of  Abilene),  Hanover  Na- 
tional Bank  t; .     110,  122 

National  Bank  (Collin  Co.),  Hughes  t?.         .        .        .  618 
National    Bank    (Farmers'),    iEtna    Indemnity   Com- 
pany!;         ...  601 

National  Bank  (First)  v,  C!ity  Council  of  Estherville      .  341 
National  Bank  (Hanover)  v,  Suddath    .        .        .110,  122 

Nelson  v.  CSty  of  Murfreesboro 617 

Newburjrport  v.  Citizens'  Savings  Bank                         .  598 
New  Liverpool  Salt  Company,  California  Development 

Company  V 603 

New  Liverpool  Salt  Company  v.  California  Develop- 
ment Company        606 

New  Mexico  ex  rel.  Coler,  Commissioners  of  Santa  Fe 

County  t?. 296 

New  Orleans,  Louisiana  ex  rd.  Hubert  v.        .        .        .  170 
New  York  Central  &  Hudson  River  Railroad  Company, 

Henry  DuBois  Sons  Company  v 596 

New  York,  New  Haven  &  Hartford  Railroad  Company 

V.  The  Steamship  Calderon 599 

Nolte,  United  States  Marshal,  Yordi  v.        .        .        .  227 

North  Carolina  Mining  Company  v.  Westfeldt            .  586 

North  Dakota  ex  rel.  Flaherty  v.  Hanson             .        .  515 
Novelty  Incandescent  Lamp  Company  v.  The  Edison 

Electric  light  Company 596 

Nowell  V.  McBride 602 

Obril  V.  Modesto  Cobian  y  Muniz 612 

Oceanica,  The,  Boland  v 599 

Oklahoma  ex  rel  Haskell,  Huston  v.      .        .        .        .  592 

Old  Nick  Williams  Company  v.  United  States        .        .  541 

Ottumwa,  International  Textbook  Company  v.    .        .  614 


TABLE  OF  CONTENTS.  xxvii 

Table  of  Cases  Reported. 

PAOK 

Peale,  Peacock  &  Kerr  v,  Graham 607 

Penn  Iron  Company  (United  States  to  use  of)  v.  William 

R.  Trigg  Company 611 

People  of  Porto  Rico  v.  Roman  Catholic  Apostolic 

Church 611 

People    of    Porto    Rico,    Roman    Catholic    Apostolic 

Church  t? 611 

Perth  Amboy  Dry  Dock  Company  v.  Monmouth  Steam- 
boat Company 592 

Pfaelzer  v.  Bach  Fur  Company 584 

Philippine  Islands,  Tiglao  v 410 

Pickens,  Atchison,  Topeka  &  Santa  Fe  Railway  Com- 
pany V 617 

Pierson  v.  Wabash  Railroad  Company    ....  598 
Pitcaim  Coal  Company  (United  States  ex  rel.),  Balti- 
more &  Ohio  Railroad  Company  v.        ,        ,        .  481 
Pitts  Livery  Company,  Woodward  Carriage  Company  v,  618 

Plamondon  v.  State  of  Kansas 615 

Porto  Rico  V.  Roman  Catholic  Apostolic  Church         .  611 

Porto  Rico,  Roman  Catholic  Apostolic  Church  v.        .  611 

Prame  v.  Ferrell 605 

Pyman  Steamship  Company  v.  Mexican  Central  Rail- 
way Company 597 

Railroad  Company  (Albany  &  Susquehanna),  Delaware 

&  Hudson  Company  v 601 

Railroad  Company  (Atl.  C.  L.)  v.  Geraty        .  .    616 

Railroad  Company  (Atl.  Coast  Line),  Macon  Grocery 

Company  V. 501 

Railroad  Company  (B.  &  0.),  Haynes  v.      .        .        .    608 

Railroad  Company  (B.  &  0.)  v.  Interstate  Commerce 

Commission 216 

Railroad  Company  (B.  &  0.)  v.  United  States  ex  rel, 

Pitcaim  Coal  Company 481 

Railroad  Company  (Chicago  &  Alton),  Interstate  Com- 
merce Conmiission  v 479 


xxviii  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

Railroad  Company   (111.  Cent.),   Interstate  Commerce 

Commission  v 452 

Railroad  Company  (111.  Cent.)  v,  Sheegog    .        .        .  308 
Railroad  Company  (N.  Y.  Cent.  &  H.  R.),  Henry  DuBois 

Sons  Company  v 596 

Railroad  Company  (New  York,  N.  H.  &  H.)  v.  The 

Steamship  Calderon 599 

Railroad  Company  (Union  Pac.)  v,  Harris  .  .  .  386 
Railroad  Company  (Union  Pac.),  Kuykendall  v,  .  .  602 
Railroad  Company  (Wabash),  Adelbert  College  v.  .  598 
Railroad  Company  (Wabash),  Picrson  v.  .  .  .  598 
Railway  Company  (A.,  T.  &  S.  F.)  v.  Pickens  .  .  617 
Railway  Company  (A.,  T.  &  S.  F.)  v,  Scwell  .  .  612 
Railway  Company  (Cent,  of  Ga.)  v.  Wright,  Comptroller- 
General  of  Georgia. 617 

Railway  Company   (Chicago  Great  West.),  Interstate 

Commerce  Commission  v 98 

Railway  Company  (C,  R.  I.  &  P.),  Ludwig  v.        .        .  615 
Railway  Company  (El  Paso  &  N.  E.)  v.  Gutierrez        .  87 
Railway  Company  (Met.  Street),  Guaranty  Trust  Com- 
pany v 587,  603 

Railway  Company    (Mex.   Cent.),   Pyman   Steamship 

Company  v 597 

Railway  Company  (Minneapolis  Street),  City  of  Minnea- 
polis V 417 

Railway  and  Electric  Company  (Washington),  Brill  v.  527 

Ramirez,  Elias  v, 398 

Rand,  McNally  &  Co.  v,  Kentucky        ....  582 

Reavis  v,  Fianza    ....                ...  16 

Receiver  of  American  Exchange  National  Bank  of  Syra- 
cuse, Kenyon  v 593 

Receiver  of  American  National  Bank  of  Abilene,  Han- 
over National  Bank  of  New  York  v.        .        .110,  122 
Receivers  of  the  Chicago  Great  Western  Railway  Com- 
pany, Interstate  Commerce  Commission  v,      .        .98 
Receiver  of  Consolidated  Barb  Wire  Company,  Henley  v.  373 


TABLE  OF  CONTENTS.  xxix 
Table  of  Cases  Reported. 

FAOK 

Reeves,  Richardson  v 619 

Remick  &  Company  v.  Stem 585 

Richardson  v.  Reeves 619 

Richmond  Coal  Company,  Conunercial  Union  Assurance 

Company!? .  609 

Rio  Grande  Dam  and  Irrigation  Company  v.  United 

States .266 

Road  Company  (Scott  County)  v.  Missouri  ex  rd.  Hines  336 

Roman  Catholic  Apostolic  Church,  People  of  Porto  Rico  v.  61 1 

Roman  Catholic  Apostolic  Church  v.  People  of  Porto  Rico  611 

Rosenbaum,  Snyder  v,           .        .     \  .        .        .        .  261 

Ross,  McGilvra  and  Bressler  v 70 

Royal  Arcanum  v.  Brenizer 612 

Rumford  Chemical  Works  v.  Hygienic  Chemical  Com- 
pany of  New  Jersey 156 

Rumford  Chemical  Works,  Hygienic  Chemical  Company 

of  New  York  v. 156 

San  Francisco,  Eddy  v 604 

Santa  F6  County  Conmaissioners  v.  Territory  of  New 

Mexico  ex  rd.  Coler       .        .        .        .        .        .  296 

Sargent,  United  States  v 618 

Savings  Bank  (Citizens')  City  of  Newburjrport  v.  .        .  598 
Scott  County  Macadamized  Road  Company  v.  State  of 
Missouri  ex  rd.  Hines,  Prosecuting  Attorney  of 

Cape  Girardeau  County 336 

Scoville,  Hadley  v 612 

Scully  V.  Squier 144 

Secretary  of  the  Interior,  .Irrigation  Land  &  Improve- 
ment Company  t? 613 

Secretary  of  State  of  Arkansas  v.  Chicago,  Rock  Island 

&  Pacific  Railway  Company 615 

Sewell,  Atchison,  Topeka  &  Santa  Fe  Railway  Com- 
pany V 612 

Sheegog,  Illinois  Central  Railroad  Company  v.    .        .  308 

Shipp,  United  States  v 580 


XXX  TABLE  OF.COxVTENTS. 

Table  of  Cases  Reported. 


PAOK 


Simmons  v.  The  Steamship  Jefferson.    See  Steamship 

Jefferson         .        .        .        .        .        .        .        .  130 

Simon  &  Company,  United  States  v 610 

Smith,  Sweeney  v.       .        .        .        .        .        .        .  600 

Snyder  v.  Rosenbawn 261 

Southern   Pacific   Company   v.   Interstate   Commerce 

Commission 226 

Spencer  v.  Watkins        .        .        .        .        .        .        .  605 

Squier,  Scully  v 144 

Stanclift  v.  Fox 619 

State  Land  Commissioner  of  Washington,  McGilvra  and 

Bresslerv 70 

State  of  Kansas,  Plamondon  v 615 

State  of  Iowa,  Thomas  v.     .        .        .        .        .        .  591 

State  (Louisiana)  ex  rd.  Hubert  v.  Mayor  and  Council 

of  New  Orleans 170 

State  of  Minnesota,  Cudahy  Packing  Company  v,        .  618 
State  of  Missouri  ex  rd.  IBnes,  Prosecuting  Attorney  of 
Cape  Girardeau  County,  Scott  Coimty  Macadamized 

Road  Company  V 336 

State  of  North  Dakota  ex  rd.  Flaherty  v.  Hanson, 

Sheriff  of  Grand  Forks  County      .        .        .        .  515 

State  of  Oklahoma  ex  rd.  Haskell,  Huston  v.    .        .  592 

State  of  Washington,  Sylvester  v 80 

State  of  West  Virginia,  King  v 616 

Steamboat  Company  (Monmouth),  Perth  Amboy  Dry 

Dock  Company  t; 592 

Steamship  Baralong,  Androvette  v 600 

Steamship  Bayamo,  Jacksonville  Towing  A  Wrecking 

Company  v 606 

Steamship  Calderon,  New  York,  New  Haven  &  Hart- 
ford Railroad  Company  v 599 

Steamship  Company  (Psmaan)  v.  Mexican  Central  Rail- 
way Company 597 

Steamship  Folmina  v.  Jahn    .        .        .        .        ,        .  608 

Steamship  Jefferson 130 


TABLE  OF  CONTENTS.  xxxi 

Table  of  Cases  Reported. 


PAGK 


Steamship  JefiFerson,  The,  Simmons  v.    See  Steamship 

Jefferson 130 

Steamship  Wildenfels,  American  Manufacturing  Ck)m- 

pany  v 597 

Steam  Tug  Eugene  F.  Moran,  Henry  DuBois  Sons  Com- 
pany V 596 

Steam  Vessel  Oceanica,  Boland  V 599 

Stern,  Jerome  H.  Remick  &  Company  v.    .        .        .  585 

Stevenson,  United  States  v 190,  200 

Steward  v.  American  Lava  Company     .        .        .        .  161 
Stickney  and  others.  Receivers  of  the  Chicago  Great 
Western  Railway  Company,  Interstate  Commerce 

Commission  v. .98 

Street  Railway  Company  (Met.),  Guaranty  Trust  Com- 
pany of  New  York  u 587,  603 

Strong  V.  Gassert 583 

Suddath,    Receiver   of   American    National    Bank   of 
Abilene,  Hanover  National  Bank  of  New  York  v. 

110,  122 

Supreme  Council  of  the  Royal  Arcanum  v.  Brenizer        .  612 

Sutton,  United  States  v.   • 291 

Sweeney  V.  Smith  .-.-..        .        .        .        .  600 

Sylvester  r.  The  State- of  Washington    .        .        .        •  80 

«  •  a  u  . 

Terminal  Railroad  Association  of  St.  Louis,  United 

States  V.       '.•.-..        .        .        .        .  595 

Territory  of  Hawaii,  Lowrey  v 554 

Territory  of  New  Mexico  ex  rel.  Coler,  Commissioners 

of  Santa  Pe  €ounty  v. 296 

Thomas  v.  De  Winter-   .     « 609 

Thomas  v.  Iowa  •   .        . 591 

Tiglao  V.  Insular  Government  of  the  Philippine  Islands  410 

Tracy,  Berger  v.     , 594 

Trigg  Company,  United  States  to  use  of  Penn  Iron  Com- 
pany!;.   .        ......        .        .        .  611 

Trinidad  Shipping  &  Trading  Company,  Halligan  v.      .  614 


xxxii  TABLE  OF  CONTENTS. 

Table  of  Caaes  Reported. 


PAQB 


Trust  Company  (American)  v.  W.  &  A.  Fletcher  Com- 
pany         600 

Trust  Company  (Guaranty)  v.  Metropolitan  Street  Rail- 
way Company 587,  603 

Trust  Company  (Guaranty),  Morton  Trust  Company  v.  603 

Trust  Company  (International),  Crook  v.    .                .  613 

Trust  Company  (Morton)  v.  Guaranty  Trust  Company 

of  New  York 603 

Trust  Company    (Union),   American   Wood   Working 

Machinery  Company  v 596 

Tunis  Lumber  Company  v.  Cumberland  Lumber  Company  603 

Union  Pacific  Railroad  Company  v.  Harris        .        .  386 

Union  Pacific  Railroad  Company,  Kuykendall  v.  .  602 
Union  Supply  Company,  United  States  v.  .  .  .50 
Union    Trust    Company,    American    Wood    Working 

Machinery  Company  v 596 

United  States  v.  American  Bonding  Company  of  Balti- 
more         616 

United  States,  Anderson  v 618 

United  States  v.  Axman         ..,.-.  617 

United  States  v.  Baruch 610 

United  States,  Cardwell  v. 599 

United  States  v.  Celestine 278 

United  States  v.  Corbett 233 

United  States,  Davis  v. 607 

United  States,  Dufaur  v 615 

United  States  v.  Freeman      ......  602 

United  States,  Kerrch  v 602 

United  States,  Komada  &  Co.  v 392 

United  States  v,  Mescall 26 

United  States,  Morse  v. 605 

United  States,  Old  Nick  Williams  Company  v.       .        .541 
United 'states,  Rio  Grande  Dam  and  Irrigation  Com- 
pany t; 266 

United  States  v.  Sargent 618 


TABLE  OF  CONTENTS.  xxxiii 

Table  of  Cases  Reported. 


PAGE 


United  States  t;.  Shipp 580 

United  States  v.  Simon  &  Company       .        .        .        .610 

United  States  v.  Stevenson 190,  200 

United  States  v.  Sutton 291 

United  States  v.  Terminal  Railroad  Association  of  St. 

Louis 595 

United  States  v.  Union  Supply  Company       ...  50 

United  States,  Walsh  v. 609 

United  States  for  the  use  of  Ludowici-Celadon  Com- 
pany, Mankin  v 533 

United  States  to  use  of  Penn  Iron  Company  v,  William 

R.  Trigg  Company 611 

United  States  ex  rel.  Pitcaim  Coal  Company,  Baltimore 

&  Ohio  Railroad  Company  v 481 

United  States  Consolidated  Seeded  Raisin  Company, 

Ex  parte 591 

United  States  Marshal  for  the  Northern  District  of 

Illinois,  Cox  v 619 

Van  Sice  v.  Ibex  Mining  Company        ....  607 

Virginia^arolina  Chemical  Company  v.  Kirven     .        .  252 

Virginia  Passenger  &  Power  Company  v.  Lane  Bros.  Co.  610 

Wabash  Railroad  Company,  Adelbert  College  v.    .        .  598 

Wabash  Railroad  Company,  Pierson  v 598 

W.  &  A.  Fletcher  Company,  American  Trust  Com- 
pany V 600 

Wagg  V.  Herbert 546 

Wagner   Electric   Manufacturing   Company,   Westing- 
house  Electric  &  Manufacturing  Company  v.        .  608 

Walsh  V.  United  States 609 

I              Ward  Lumber  Company  v.  Henderson-White  Manu- 
facturing Company 612 

I              Washington,  Sylvester  v 80 

Washington  Gas  Light  Company  v,  Macfarland  et  al,, 

Commissioners  of  the  District  of  Columbia    .        .614 

Washington  Railway  and  Electric  Company,  Brill  v.     .  527 


xxxiv  TABLE  OF  CONTENTS. 

Table  of  Cases  Reported. 

9Aam 

Waterman  v.  The  Caiial-Louisiana  Bank  and  Trust 

Company,  Executor 33 

Watkins,  Spencer  v 605 

Watson  V,  Greenwood 599 

Weber  v.  Grand  Lodge  of  Kentucky,  Free  and  Accepted 

Masons 60^ 

Western  Pocahontas  Corporation,  Acord  v.    .        .        .  607 

Westfeldt,  North  Carolina  Mining  Company  v.    .        .  580 
Westinghouse  Electric  &  Manufacturing  Company  v. 

Wagner  Electric  Manufacturing  Company    .        .  608 
Westrumite  Company  of  America,  Commissioners  of 

lincoln  Park  v 610 

West  Virginia,  King  v 616 

Wildenfels,  The,  American  Manufacturing  Company  v.  597 
William  R.  Trigg  Company,  United  States  v.        .        .611 

Williamson,  Majors  v 597 

Williamson,  Metropolitan  Life  Insurance  Company  v.    .  608 

Woodward  Carriage  Company  v,  Pitts  Livery  Company  618 
Wright,    Comptroller-General   of   Georgia,   Central   of 

Georgia  Railway  Company  v 617 

Yellow  Poplar  Lumber  Company  v.  Chapman        .        .  601 

Yordi  V.  Nolte,  United  States  Marshal        •        .        .  227 


Proceedings  on  the  Death  of  Mr.  Justice  Peckham        .        v 
Rules  of  Court.    Amendment  of  §  7  of  Rule  24    .        .     xiv 


TABLE  OF  CASES 


CITED  IN  OPINIONS. 


FAGB 

Adams  v.  Woods,  2  Cranch, 
336  198 

Alabama  Great  Southern  Ry. 
V.  Thompson,  200  U.  S.  206 

251,  316,  325 

Aldrich  v.  Steen,  100  N.  W. 
Rep.  311  5 

AHcia,  The,  7  Wall.  571  224 

AUen  V.  Riley,  203  U.  S.  347    526 

Althea  Ck)lemaQ  v.  Whitney, 
62  Vt.  123  577 

Altoona  Quicksilver  Mining 
Co.  V.  Integral  Quicksilver 
Mming  Co.,  114  Cal.  100        24 

American  Lava  Co.  v.  Stew- 
ard, 155  Fed.  Rep.  731, 
740;5.  C,  84C.  C.A.  157, 
166  161 

American  Tobacco  Co.  v. 
Werckmeister,  207  U.  S. 
2S4  188 

Ames  V.  Lake  Superior  & 
Miss.  R.  R.  Co.,  21  Minn. 
241  430 

Anderson  v.  Carkins,  135 
U.  S.  483  85 

Appleyard  v.  Massachusetts, 
203U.S.222  68 

Arbuckle  v.  Blackburn,  191 
U.  S.  405  590 

Arkansas  v.  Coal  Co.,  183 
U.  S.  185  514 

Arkansas  Southern  R.  R.  Co. 
V.  German  Nat.  Bank,  207 
U.  S.  270  583 

Armijo  v.  Armijo,  181  U.  S. 
558  307 

Ashby  V.  Hall,  119  U.  S.  526  154 

Atchison,  Topeka  &  Santa 
Fe  Ry.  C)o.  v.  Sowers,  213 
U.  S.  55  90,  92 


PAOX 

Atlantic  Trust  Co.  v.  Chap- 
man, 208  U.  S.  360  587 

Bachtel  v.  Wilson,  204  U.  S. 

36  585 

Bacon  v.  Texas,  163  U.  S.  207 

175,583 
Bagley  v.  General  Fire  Ex- 

tmguisher  Co.,  212  U.  S. 

477  15 

Baltimore  &  Ohio  R.  R.  Co. 

V.  Baugh,  149  U.  S.  368        359 
Baltimore  &  Ohio  R.  R.  Co. 

V.  Interstate  Com.  Comm., 

215  U.  S.  216  227,  595 

Baltimore  &  Ohio  R.  R.  Co. 

V.  Pitcaim  Coal  Co.,  215 

U.  S.  481  511 

Bank  of  Montreal  v.  White, 

154  U.  S.  660  117 

Barber  v,  Pittsburg  &c.  Ry., 

166  U.  S.  83  359 

Barker  v.  Harvey,  181  U.  S. 

481  388 

Barney  v.  Baltimore,  6  Wall. 

280  48 

Barney  v.  Keokuk,  94  U.  S. 

324  79 

Bates  V.  Qark,  95  U.  S.  204     285 
Beale's  Heirs  v,  Johnson,  45 

Tex.  av.  App.  119;  iS.  C, 

99  S.  W.  Rep.  1045  590 

Reals  V.  Cone,  188  U.  S.  184    585 
Belk  V.  Meagher,  104  U.  S. 

279  24 

Benson    v,    McMahon,    127 

U.  S.  457  409 

Berger  v.  Tracy,  135  Iowa, 

597  595 

Biebinger     v.      Continental 

Bank,  99  U.  S.  143  116 

(xxxv) 


XXXVl 


TABLE  OF  CASES  CITED. 


PAOB 

Bien  v.  Robinson,  208  U.  S. 

423  587 

Blackwall,  The,  10  Wall.  1 

139  140  141 
Blair  V.  Chicago,  201  U.  S.  400  431 
Bobbs-MerrilT  Co.  v,  Straus, 

210  U.  S.  339  188 

Bolles   V.    Outing   Co.,    175 

U.  S.  262  243 

Bong  V.  Campbell  Art  Co., 

214  U.  S.  236  188 

Boone  v.  Chiles,  10  Pet.  177  9 
Boyle  V.  Zacharie,  6  Pet.  635  364 
Brazee  v.  Schofield,  124  U.  S. 

495  86 

Brill  V.  Peckham  Mfg.  Co., 

135  Fed.  Rep.  784;  S,  C, 

68  C.  C.  A.  486  528 

Brill  V.  Washington  Ry.  & 

El.  Co.,  30  App.  D.  C.  255    531 
Brine  v.  Insurance  Co.,   96 

U.  S.  627     9,  367,  368,  369,  372 
Brittin  v.  City  of  New  Or- 
leans, 106  La.  469  175 
Brooks  V,  Norris,  1 1  How.  204  543 
Brown  v.  Maryland,  12  Wheat. 

419  524 

Bryant  v.  United  States,  167 

U.  S.  104  407 

Bucher  v.  Cheshire  Railroad 

Co.,  125  U.  S.  555  359 

Burgess    v.    Seligman,     107 

U.  S.  20  357,  360,  366 

Burlington,  Cedar  Rapids  & 

Northern    R.    R.    Co.    v. 

Dunn,  122  U.  S.  513  325 

Burnley    v.    Stevenson,    24 

Ohio  St.  474  12 

Butte    aty    Water    Co.    v. 

Baker,  196U.  S.  119  585 

Bybee  v.  Oregon  &  California 

R.  R.  Co.,  139  U.  S.  663       389 
Byers  v,  McAuley,  149  U.  S. 

608  43,  44,  45 

Caliga  V,  Inter  Ocean  News- 
paper Co.,  157  Fed.  Rep. 

186  187 

Camp  V.  Dixon,  112  Ga.  872  334 
Carbon   Block   Coal   Co.    v. 

Murphy,  101  Ind.  115  576 

Carey  v.  Houston  &  Texas 

Central  Ry.  Co.,  150  U.  S. 

170  587 


PAOK 

Carino    v.    Insular   Govern- 
ment, 212  U.  S.  449        23,  414 
Carpenter    v.    Strange,    141 

U.  S.  87  9 

Carroll  County  v.  Smith,  111 

U.  S.  556  366 

Carson  v.  Dunham,  121  U.  S. 

421  325 

Carson  v.  Hyatt,  118  U.  S. 

279  324 

Castillo  V.   McConnioo,    168 

U.  S.  674  595 

Central  Land  Co.  v,  Laidley, 

159  U.  S.  103  583 

Chanute  v.  Trader,  132  U.  S. 

210  583 

Cherokee  Nation  v.   Hitch- 
cock, 187  U.  S.  294  61 
Chesapeake  &  Ohio  Ry.  Co. 

V.  Dixon,   179  U.  S.   131 

251,  319,  325 
Chesapeake  &  Ohio  Ry.  Co. 

v.  McCabe,  213  U.  S.  207      316 
Chicago,  Burlington  &  Quincy 

Ry.  Co.  V.  WiUiams,  205 

U.  S.  444  221 

Chicago  City  t;.  Robbins,  2 

Black,  418  361 

Chicago  &  N.  W.  Ry.  Co.  v. 

Chicago,  164  U.  S.  454         257 
Choctaw  Nation  v.   United 

States,  119  U.S.  1  59 

Chouteau  v.  Gibson,  HI  U.  S. 

200  130 

Cincinnati,   New  Orleans  & 

Texas  Pacific  Ry.  Co.  v. 

Bohon,  200  U.  S.  221    316 

325,  326 
Cincinnati  Street  Ry.  Co.  v, 

Snell,  193  U.  S.  30  590 

City  of  Newcastle,  The,   7 

Asp.  Mar.  Cas.  (N.  S.)  546  141 
Cizek  V.  azek,  69  Neb.  797  5 

Clarita  and  Clara,  The,  23 

Wall.  1  141 

Clarke  v.  McDade,  165  U.  S. 

168  257 

Clement  v.  United  States,  149 

Fed.  Rep.  305  230 

Cleveland  Terminal  &  Valley 

R.    R.    Co.    v.    Cleveland 

Steamship  Co.,  208  U.  S. 

316  138 


TABLE  OF  CASES  CITED 


xxxvu 


PAGE 


Qune  V.  United  States,  159 
U.  S.  590  203 

Cochran  v.  United  States,  157 
U.  S.  286        238, 239,  240,  243 

Cofield  V,  McQelland,  16 
Wall.  331  155 

Commisaioners  &c.  v.  Ban- 
croft, 203  U.  S.  112  359 

Commonwealth  v.  Ginn  & 
Co.,  Ill  Ky.  110  583 

Commonwealth  of  Kentucky 
V.  Dennison,  24  How.  66      199 

Commonwealth  v,  Pulaski 
County  Amcultural  &  M. 
Asso.,  92  Ky.  197  55 

Conboy  v.  Bank,  203  U.  S. 
141  543, 544 

Conley  t;.  Mathieson  Alkali 
Works,  190  U.  S.  406  442 

Cope  V.  Vallette  Dry  Dock 
Co.,  119U.  S.  625         138,  142 

Corbett  v.  Craven,  193  Mass. 
30  127 

Corbett  v.  Craven,  196  Mass. 
319  128 

Corbett  v.  Nutt,  10  Wall.  464      9 

Corkran  Oil  Co.  v.  Amaudet, 
199  U.  S.  182  583,  592 

Cornell  V,  Green,  163  U.  S.  75  587 

Couture  v.  United  States,  207 
U.  S.  581  291,  296 

Covington  v.  First  Nat.  Bank, 
198  U.  S.  100  130 

Cox  V.  Texas,  202  U.  S.  446  590 

Credit  Co.  v.  Arkansas  Cen- 
tral Ry.,  128  U.  S.  258  543,  544 

Crehore  v.  Ohio  &  Miss.  Ry. 
Co.,  131  U.  S.  240        316,  325 

Cresqent  City  &c.  Co.  v. 
Butchers'  Union  &c.  Co., 
120  U.  S.  141  257 

Crier  v.  Innes,  160  U.  S.  103    391 

Cromwell  v.  Sac  County,  94 
U.  S.  351  267,  258 

Crow  Dog,  Ex  parte,  109  U.  S. 
556  285 

Davis  V.  Ehnira  Savings 
Bank,  161  U.  S.  275  524 

De  la  Rama  t;.  De  la  Rama, 
201  U.  S.  303  22 

De  La  Vergne  Refrigerating 
Machine  Co.  v.  Feather- 
stone,  147  U.  S.  209  168 


PAGE 

Delmar  Jockey  Club  v.  Mis- 
souri, 210  U.  S.  324  587 
Deposit  Bank  v.  Frankfort, 

191  U.  S.  499  257 

Detroit  v.  Detroit  Citizens' 

Street  Ry.  Co.,  184  U.  S. 

368  430,  434,  436 

De  Vaughn  v.  Hutchinson, 

165  U.  S.  566  367,  369 

Dick  V,  United  States,  208 

U.  S.  340  287 

Dollar     Savings     Bank     t;. 

United   States,    19   WaU. 

227  197 

Donovan  v.  Wells,  Fargo  & 

Co.,  169  Fed.  Rep.  363  329 
Douglass  V.  Rke  County,  101 

U.  S.  677  371 

Draper  t;.  United  States,  164 

XL  S.  240  295,  296 

Dublin  V.  Chaboum,  16  Mass. 

433  214 

Dull  t;.  Blackman,  169  U.  S. 

243  11 

Duluth    V.    Duluth    Gas    & 

Water  Co.,  45  Minn.  210  428 
Duluth  &  S.  Bridge  Co.  v. 

The  Troy,  208  U.  S.  321  138 
Dyer  t;.  Melrose,  197  Mass.  99  594 
Ec^^1eton  Manuf .  Co.  v.  West, 

Bradley  &  Carey  Manuf. 

Co.,  Ill  U.  S.  490  168 

East  Alabama  Ry.  Co.  v.  Doe, 

114U.  S.  340  359 

East  Cent.   Eureka  Mining 

Co.  V.  Central  Eureka  Co., 

204  U.  S.  266      86,  367, 

368,  369,  372 
Eastern  Monarch,  Lush.  81  140 
Eells  V,  Ross,  12  C.  C.  A.  205  287 
Egita,  In  re,  63  Fed.  Rep.  972  409 
Electric    Co.    V.    Dow,    166 

U.  S.  489  583 

El   Paso  &   N.   E.   Ry.   v. 

Gutierrez,  111  S.  W.  Rep. 

159;  5.  C,  117S.  W.  Rep. 

426  91 

Empire  State-Idaho  Mining 

&  D.  Co.  V,  Hanley,  205 

U.  S.  225  587 

Employers'  Liability  Cases, 

207  U.  S.  463    91,  93,  94, 

95,  96,  97 


XXXVIIl 


TABLE  OF  CASES  CITED. 


FAOB 

ICiigllNh  V.  Arisona,  214  U.  S. 

m)  305, 307 

lOuMtiH  V.  BoUes,  150  U.  S.  361  583 
lOvAUH  V.  United  States,  153 

IJ.  H.  684  243 

Mvtirott  V.  Everett,  48  App. 

Div.  476;  S.  C,  75  App. 

1)1  V.  369;  5.  C.  89  App. 

1)1  V.  619;  5.  C,  180  N.Y. 

462  207 

Kiiirfleld  v.  Gallatin  County, 

100  U.  S.  47  371 

Fttll  V,  Fall,  106  N.  W.  Rep. 

4l2;iS.  C,  75Neb.  104  4,6 
I'^arrar  v,  Churchill,  135  U.  S. 

609  543, 544 

I'ttrrell  v.  O'Brien,  199  U.  S. 

89  44, 587 

Fauntleroy  v.  Lum,  210  U.  S. 

230  10,  15 

jnnn  V,  Brown,  142  U.  S.  56  593 
First  Nat.  Bank  v.  Esther- 

ville,  136  Iowa,  203  345 

Folsom   V.    Ninety-six,    159 

U.  S.  611  359 

Forgay  v,  Conrad,  6  How. 

201  224 

Foxcroft  V.  Mallett,  4  How. 

353  363, 364 

French,  Trustee,  v.  Hay,  22 

Wall.  250  8 

Fritzlen  t;.  Boatmen's  Bank, 

212  U.  S.  364  251 

Garfield  v.  Goldsby,  211  U.  S. 

249  63 

Gatewood  v.  North  Carolina, 

203  U.  S.  531  585 

Gelpcke  v.  Dubuque,  1  Wall. 

175  371, 372 

Genessee  Chief  v.  Fitzhugh, 

12  How.  443  78 

Gibbons  v.  Ogden,  9  Wheat. 

1  474, 524 

Gillcock  V,  The  People,  171 

111.  307  32 

Globe     Newspaper    Co.    v. 

Walker,  210  U.  S.  356  138, 197 
Goldey  v.  The  Morning  News, 

166  U.  S.  518  442 

Goodrich  V.  Ferris,  214  U.  8. 

71  687 

Gormley  v.  Clark,  134  U.  8. 

338  359 


PAOK 


Gray  Lumber  Co.  v.  Gaskin, 

122  Ga.  342  334 

Great  Southern  Hotel  Co.  v. 

Jones,  193  U.  S.  532  366 

Greeley  v.  Lowe,  155  U.  S.  58  587 
Green  v.  C,  B.  &  Q.  Ry.  Co., 

205  U.  S.  530  442 

Green  v.  Knife  FaUs  Boom 

Corp.,  35  Minn.  155  429 

Green  v.  Liter,  8  Cranch,  229  334 
Green's  Ad.  v.  Creighton,  23 

How.  90  43 

Green  County  v,  Conness,  109 

U.  S.  104  371 

Greenwood  Drug  Co.  v,  Bro- 

monia  Co.,  81  S.  Car.  516    260 
Griflfin  V,  Coal  Co.,  59  W.  Va. 

480  355  356 

Griffin  V.  Sketoe,  30  Ga.  300  '  335 
Grin  V,  Shine,  187  U.  S.  181     232 
Guaranty  Trust  Co.  v.  Metro- 
politan Street  Ry.  Co.,  166 

Fed.  Rep.  569;  168  Fed. 

Rep.  937;  170  Fed.  Rep. 

335,  625,  626;  171  Fed. 

Rep.  1014,  1015,  1019    588 
Guaranty  Trust  Co.  v.  Second 

Avenue  Ry.  Co.,  171  Fed. 

Rep.  1020  588 

Haffner    v.    Dobrinski,     17 

Okla.  438  446 

Haire  v.  Rice,  204  U.  S.  291 

585,592 
Hammond   Packing   Co.    v, 

Arkansas,  212  U.  S.  322       590 
Hanover  Nat.  Bank  v.  Sud- 

dath,  153  Fed.  Rep.  1021 

112,  124 
Hardin  v,  Boyd,  113  U.  S. 

756  276 

Harding  v,  Illmois,  196  U.  S. 

78  257, 590 

Hart  V,  Sansom,  110  U.  S. 

151  10 

Hastings  &c.  R.  R.  Co.  v. 

Whitney,  132  U.  S.  357        389 
Hawke  v.  E.  Hulton  &  Co., 

Ltd.  (1909),  2  K.  B.  93  55 

Hayes  v.  Pratt,  147  U.  S.  557    43 
Hayes  v.  United  States,  170 

tJ.  S.  637  415,  417 

HeflF,  Matter  of,  197  U.  S.  488 

288,290 


TABLE  OF  CASES  CITED. 


XXXIX 


PAGE 

Henley  v.  Myers,  76  Kan.  736  379 

Hennessy  v,  Woolworth,  128 
U.  S.  438  450 

Hepner  v.  United  States,  213 
U.  S.  103  199 

Hibemia  Savings  Society  v, 
San  Francisco,  200  U.  S. 
310  594 

Hill  V.  American  Surety  Co., 
200  U.  S.  197        537,  539,  540 

Holland  v.  Challen,  110  U.  S. 
15  335 

Houseman  v.  The  Cargo  of 
the  Schooner  North  Caro- 
lina, 15  Pet.  40  137 

Hubbard  v.  Hubbard,  97 
Mass.  188  576 

Hubert  v.  City  of  New  Or- 
leans, 116  La.  507  173 

Hussey  17.  Smith,  99  U.  S.  20    155 

Hyatt  V.  Corkran,  188  U.  S. 
691  68 

Hyde  v.  Southern  Ry.  Co.,  31 
App.  D.  C.  466  98 

Hyde  v.  Stone,  20  How.  170      43 

Illinois  Central  R.  R.  v.  Mc- 
Kendree,  203  U.  S.  514  97 

Illinois  C^tral  Ry.  Co.  v, 
Sheegog's  Admr.,  126  Ky. 
252  315,  322 

Imperial  Colliery  Co.  v.  Ches- 
apeake &  O.  Ky.  Co.,  171 
Fed.  Rep.  589  507 

Ingersoll  v.  Coram,  211  U.  S. 
335  43,46 

Interstate  Com.  Comm.  v. 
C,  B.  &  Q.  R.  R.  Co.,  186 
U.  S.  320  104,  105,  108 

Interstate  Com.  Comm.  v. 
Illinois  Central  R.  R.  Co., 
215  U.  S.  452    480,  483, 

494,  495,  496 

Iowa  V.  Rood,  187  U.  S.  87      585 

Iowa  Central  Ry.  Co.  v.  Iowa, 
160  U.  S.  389  585 

Jackson  v.  Chew,  12  Wheat. 
153  359 

Jefferson,  The,  158  Fed.  Rep. 
358  136,  137,  138 

Jenkins  v.  International  Bank 
of  Chicago,  127  U.  S.  484     275 

Jewell  V.  Knight,  123  U.  S* 
426  221 


PA.OB 

Jewett  Bros,  v,  C,  M.  &  St. 

P.  Ry.  Co.,  156  Fed.  Rep. 

160  507 

Joy  V,  St.  Louis,  201  U.  S.  332 

79,  514 
Julian  V.  Central  Trust  Co., 

193  U.  S.  93  359 

Julian  V,  Kansas  City  Star 

Co.,  209  Mo.  35  590 

Kansas  v.  Colorado,  206  U.  S. 

46  79 

Kansas    City    Railroad    v. 

Daughtry,  138  U.  S.  298      325 
Kansas  City  Suburban  Belt 

Ry.  Co.  V.  Herman,   187 

U.  S.  63  251 

Kansas  Indians,  The,  5  Wall. 

737  287 

Keasbey  &  Mattison  Co.,  In 

re,  160  U.  S.  221  508,  512 

Kennedy   v.    Hazel  ton,    128 

U.  S.  667  168 

Kenyon  v.  Fowler,  155  Fed. 

Rep.  107;iS.C.,83C.C.A. 

567  593 

Kessler  v.  Eldred,  206  U.  S. 

285  528 

Keyser  v.  Hitz,  133  U.  S.  138  593 
King  V.  Stuart,  84  Fed.  Rep. 

546  334 

Kirchberger     v,     American 

Acetylene  Burner  Co.,  128 

Fed.  Rep.  599;  S.  C,  64 

C.  C.  A.  107  161 

Kirven  v.   Virginia-Carolina 

Chemical  Co.,  77  S.  Car. 

493  255 

Knowlton    v.    Moore,     178 

U.  S.  41  524 

Knox  County  v,  Harshman, 

133  U.  S.  152  443 

Kuhn  V.  Fairmont  Coal  Co., 

152  Fed.  Rep.  1013  354 

Landes  v.  Brant,  10  How.  348  87 
Lane  t;.  Vick,  3  How.  464  362 
Langhton  v.  Atkins,  1  Pick. 

535  214 

Lathrop,  Shea  &  Henwood 

Co.  V,  Interior  Construc- 
tion &  Improvement  Co., 

135  Fed.  Rep.  619;  5.  C, 

143  Fed.  Rep.  687;  S.  C, 

150  Fed.  Rep.  666        248,  249 


xl 


TABLE  OF  CASES  CITED. 


Lawrence  v.  Nelson,  143  U.  S. 

215  43 

Lawson    v.    United    States 

Mining  Co.,  207  U.  S.  1  334 
Lees  V,  United  States,  150 

U.  S.  476  198 

Lennon,  In  re,  150  U.  S.  393  587 
License  Cases,  5  How.  504  524 
Litchfield  v.  Goodnow,   123 

U.  S.  549  160 

Lockard  t;.  St.  Louis  &  S.  F. 

R.  Co.,  167  Fed.  Rep.  675  329 
Loeber    v,    Schroeder,     149 

U.  S.  580  590 

Logan  Coal  Co.  v.  Pennsyl- 
vania R.  R.  Co.,  154  Fed. 

Rep.  497  461,  474 

Lone  Wolf  v.  Hitchcock,  187 

U.  S.  553  61 

Los  Angeles  v.  Los  Angeles 

City  Water  Co.,  177  U.  S. 

558  431,  435 

Louisiana  v.   New   Orleans, 

102  U.  S.  203  178 

Louisville  &  Nashville  R.  R. 

Co.  V.  Mottley,  211  U.  S. 

149  504 

Louisville  &  Nashville  R.  R. 

Co.  V.  Wangelin,  132  U.  S. 

599  319 

liouisville  Trust  Co.  v,  Cin- 
cinnati, 76  Fed.  Rep.  296  364 
Louisville  Trust  Co.  v.  Co- 

mingor,  184  U.  S.  18  137 

Louisville  Trust  Co.  v.  Knott, 

191  U.  S.  225  587 

Lowrey  v.  Hawaii,  19  Hawaii, 

123  560  et  aeq. 

Lowrey  v.  Hawaii,  206  U.  S. 

206  559,  564 

Luther  t;.  Borden,  9  How.  1  592 
McAlister  v.   Chesapeake  & 

Ohio  Ry.   Co.,  .  157   Fed. 

Rep.  740  329 

McCabe  v.  Ma3n3VLlle  &  Big 

Sandy  R.  R.  Co.,  112  Ky. 

861  317 

McCorquodale  v,  Texas,  211 

U.  S.  432  583,  590 

M'Elmoyle  v.  Cohen,  13  Pet. 

312  12 

Macfadden  v.  United  States, 

213  U.  S.  288  587,  589 


FAOK 

McGilvra  v.  Ross,  161  Fed. 

Rep.  398  75 

McGilvra  v.  Ross,  161  Fed. 

Rep.  604  76 

McGuire  v.  Great  Northern 

Ry.  Co.,    153    Fed.  Rep. 

434  329 

Mcintosh    V.    Aubrey,    185 

U.  S.  122  594 

McKay  v,  Kalyton,  204  U.  S. 

458  296 

McLish  v.  Roff,  141  U.  S.  661 

224,  584,  585 
McNichols  V.  Pease,  207  U.  S. 

100  68 

Macon  Grocery  Co.  v.  Atlan- 
tic C.  L.  R.  Co.,  163  Fed. 

Rep.  738  503 

McConnick  Harvesting  Ma^ 

chine  Co.  v.  Walthers,  134 

U.  S.  41  512 

McCowan  v,  Maclay,  16  Mont. 

234  24 

M'Culloch    V.    Maryland,    4 

Wheat.  316  524 

McCuUough  V,  Virginia,  172 

U.  S.  102  175 

McGuire  v.  Great  Northern 

Ry.  Co.,  153  Fed.  Rep.  434  329 
McPhun,  In  re,  30  Fed.  Rep. 

57  409 

Majestic  Coal  &  Coke  Co.  v, 

Illinois  Central  R.  R.  Co., 

162  Fed.  Rep.  810        461,  496 
Marine  Ins.  Co.  v.  Hodgson,  6 

Cranch,  206  275 

Massie  v.  Watts,  6  Cranch, 

148  9 

Matteson  v.  Dent,  176  U.  S. 

521  593 

Matthews  v.  Kimball,  70  Ark. 

451  32 

Memphis  v.  United  States,  97 

U.  S.  293  178 

Memphis  Cotton  Oil  Co.  v. 

Illinois  Central  R.  R.  Co., 

164  Fed.  Rep.  290  507 

Merchants'  Heat  &  Light  Co. 

V.  Clow  &  Sons,  204  U.  S. 

286  257,  258 

Metropolitan    Railway    Re- 
ceivership, In  re,  208  U.  S. 

90  587 


TABLE  OF  CASES  CITED. 


xli 


FAOK 

Mexican   Cent.   Ry.   Co.   v, 

Pinkney,  149  U.  S.  194         443 
Milkman    v,    Ordway,    106 

Mass.  232  335 

Miller  t;.  Cornwall  R.  R.  Co., 

168  U.  S.  131  257 

Miller  v.  Eagle  Manuf.  Co., 

151  U.  S.  186  189 

MiUer  V.  Sheny,  2  Wall.  237        9 
Minnesota  v.  Hitchcock,  185 

U.  S.  373  388 

Missouri,  K.  &  T.  R.  Co.  v, 

Haber,  169  U.  S.  613  524 

Mobile  V.  Watson,  116  U.  S. 

289  178 

Moore,  In  re,  209  U.  S.  490 

508,587 
Moran  v.  Horsky,  178  U.  S. 

205  585 

Morton  Trust  Co.  t;.  Metro- 
politan Street  Ry.  Co.,  170 

Fed.  Rep.  336  588 

Munsey  v.  Clough,  196  U.  S. 

364  68 

Murphy  v.  Utter,  186  U.  S. 

95  303 

Mussina  v.  Cavazos,  6  Wall. 

355  545 

Mutual  Life  Ins.  Co.  v.  Mc- 

Grew,  188  U.  S.  291  589 

Nash  V.  Lowry,  37  Minn.  261  431 
Nashimura  Ekiu  v.   United 

States,  142  U.  S.  651  232 

National  Bank  of  Commerce 

V.  Ripley,  161  Mo.  126  31 

NewhaU  v.  Sanger,  92  U.  S. 

761  388 

New  Orleans  &  Texas  Pacific 

Ry.  Co.  V.  Bohon,  200  U.  S. 

221  325,  326 

New  York  Central  &  Hudson 

River    R.    R.    v.    United 

States,  212  U.  S.  481  55 

Nickerson  v,  Nickerson,  127 

U.  S.  668  450 

Nishimiya  v.  United  States, 

131  Fed.  Rep.  650  393 

Nixon  V.  Carco,  28  Miss.  414    86 
Northern   Pacific   R.    R.   v. 

Dustan,  142  U.  S.  492  304 

Northern  Pacific  Ry.  Co.  v. 

Hasse,  197  U.  S.  9  389 

Northern  Pacific  Ry.  Co.  v. 


PAGK 


Pacific  &c.  Assn.,  165  Fed. 

Rep.  1  507 

Northern  Pacific  R.  Co.  v, 

Slaght,  205  U.  S.  122  257 

North  Jersey  St.  Ry.  Co.  v. 

Brill,  134  Fed.  Rep.  580; 

S.  C,  67  C.  C.  A.  380,  re- 
versing 124  Fed.  Rep.  778, 

125  Fed.  Rep.  526  528 

Nugent  V,  Boston,  C.  &  M.  R. 

Co.,  80  Me.  62  322,  323 

Nutt  V.  Knut,  200  U.  S.  12        85 
Ohio  Life  Ins.  &  Trust  Co.  v. 

Debolt,  16  How.  416  371 

Old   Nick   Williams   Co.   v. 

United   States,    152   Fed. 

Rep.  925  543 

Oliver  v.  Piatt,  3  How.  333     577 
Oregon  &  California  R.  R.  v. 

United  States,  No.  3,  190 

U.  S.  186  85 

Omelas  v.  Ruiz,  161  U.  S.  502  407 
Osborne  v.  Bank  of  United 

States,  9  Wheat.  738  524 

Owensboro    Nat.    Bank    v. 

Owensboro,  173  U.  S.  664    524 
Oxley  Stave  Co.  v.   Butler 

County,    166   U.    S.    648   590 
Ozan  Lumber  Co.  v.  Union 

County  Bank,  207  U.  S. 

251  526 

Page  V.  McKee,  3  Bush,  135      13 
Paquete  Habana,  The,   175 

U.  S.  677  221 

Patton  V.  Brady,  184  U.  S. 

608  506 

Payne  v.  Hook,  7  WaU.  425 

43,  46,  49 
Peck  V.  Ayres  &  Lord  Tie 

Co.,  116Fed.  Rep.  273         334 
Pennsylvania    Steel    Co.    v. 

Metropolitan    Street    Ry. 

Co.,  170  Fed.  Rep.  623        588 
People's  U.  S.  Bank  v.  Good- 
win, 160  Fed.  Rep.  727        329 
Perego  v.  Dodge,  163  U.  S. 

160  25 

Peterson  v,  Chicago,  R.  I.  & 

Pac.  Ry.  Co.,  205  U.  S.  364  442 
Pettibone    v.    Nichols,    203 

U.  S.  192  68 

Pe)rroux  v.  Howard,  7  Pet. 

324  143 


xlii 


TABLE  OF  CASES  CITED. 


PAGE 


Pfaelzer  v.  Bach  Fur  Co.,  215 

U.  S.  584  585 

Phelps  V.  McDonald,  99  U.  S. 

308  9 

Pierce    v.    Middle    Georgia 

Land  &  Lumber  Co.,  131 

Ga.  99  335 

Pierce  v.  Somerset  Railway, 

171  U.  S.  641  583 

Pittsburg  &c.  Ry.  v.  Loan  & 

Trust  Co.,  172  U.  S.  493  257 
Plummer  t;.  Coler,  178  U.  S. 

115  524 

Pollard,  Ex  partem  4  Deacon, 

27  14 

PoIIeys  V.  Black  River  Co., 

113  U.  S.  81  543 

Pollock  V.  Farmers'  Loan  & 

Trust  Co.,  157  U.  S.  429  524 
Poison  V.  Stewart,  167  Mass. 

211  15 

Pope  Manuf .  Co.  v,  GormuUy, 

144  U.  S.  224  450 

Postal  Telegraph-Cable  Co.  v. 

Adams,  155  U.S.  688  470 

Powers  V.  C.  &  O.  Ry.,  169 

U.  S.  92  250,  251 

Presidio  Coimty  v.  Noel- 
Young  Bond  Co.,  212  U.  S. 

58  359 

Prosser  v.  Northern  Pacific 

R.  R.,  152  U.  S.  59  79 

Provident   Chemical    Works 

17.  Hygienic  Chemical  Co., 

170  Fed.  Rep.  523  159,  160 
Rail  &  River  Coal  Co.  v.  B.  & 

O.  R.  R.  Co.,  14  I.  C.  C. 

Rep.  94  495,  496,  497 

Railroad  Comm.  of  Ohio  v, 

Hocking  Valley  Ry.  Co.,  12 

I.C.C.Rep.398  463,496 

Railroad  Co.  v.  Baldwin,  103 

U.  S.  426  389 

Railroad  Co.  v.  Peniston,  18 

Wall.  5  594 

Railway   Co.   v.   Sayles,   97 

U.  S.  554  168 

Rainbow  v.  Young,  161  Fed. 

Rep.  835  291,  296 

Ralls  County  Court  v.  United 

States,  105  U.  S.  733  176,  177 
Rand,  McNally  &  Co.  v.  Com- 
monwealth, 106  S.  W.  Rep. 


PAGR 


238;  5.  C,  108  S.  W.  Rep. 

892,  32  Ky.  Law  Rep.  441, 

1168  583 

Reavis  V.  Fianza,  215  U.  S.  16  414 
R^ggel,  Ex  parUy  114  U.  S. 

642  68 

Reid  V,  Colorado,  187  U.  S. 

137  524 

Remington  v.  Central  Pacific 

R.  R.  Co.,  198  U.  S.  95  440 
Resolute,  The,  168  U.  S.  437  138 
Reynes  v.  Dumont,  130  U.  S. 

354  25,  116 

Rice  V.  Ames,  180  U.  S.  371  231 
Richmond  v.  Irons,  121  U.  S. 

27  593 

Robertst7.Reilly,116U.S.80  68 
Robert  W.  Parsons,  The,  191 

U.  S.  17  143 

Robinson    v.    Campbell,    3 

Wheat.  212  364 

Rosalie,  The,  1  Spink,  188  140 
Rmnford  Chemical  Works  v. 

Hygienic     Chemical     Co., 

148  Fed.  Rep.  862  160 

Rumford  Chemical  Works  v. 

Hygienic     Chemical     Co., 

154Fed.  Rep.  65;5.C.,83 

C.  C.  A.  177  158 

Rumford  Chemical  Works  v. 

Hygienic     Chemical     Co., 

159  Fed.  Rep.  436;  S.  C, 

86  C.  C.  A.  416  158 

Rumford  Chemical  Works  v. 

New  York  Baking  Powder 

Co.,    134  Fed.   Rep.   385; 

S,  C,  67  C.  C.  A.  367  159 

Russell  V,  Southard,  12  How. 

139  363,  552,  553 

San  Francisco  v.  Itsell,  133 

U.  S.  65  130 

Sayward  v.  Denny,  158  U.  S. 

180  585,  589 

School  District  v.  Hall,  106 

U.  S.  428  544 

Schweer  v.  Brown,  195  U.  S. 

171  137 

Scotland    County    Court    v. 

Hill,  140  U.  S.  41  178 

Scott  V.  Armstrong,  146  U.  S. 

499  125 

Scranton    v.    Wheeler,    179 

U.  S.  141  79 


TABLE  OF  CASES  CITED. 


xliii 


PAGE 


Scully  V.  Bird,  209  U.  S.  481  138 
Scully  V.  Squier,  13  Idaho, 

417  150,  151,  152,  153 

Seibert  v.  Lewis,  122  U.  S. 

284  178 

Sharon  v.  Tucker,  144  U.  S. 

533  335 

Shaw  V.  Quincy  Mining  Co., 

145  U.  S.  444  512 

Shepard  v.  Barron,  ld4  U.  S. 

553  583 

Shields  v.  Barrow,  17  How. 

130  48 

Shively  v.  Bowlby,  152  U.  S. 

1  77,  78,  79 

Silsbee  v.  Webber,  171  Mass. 

378  266 

Simmons  Creek  Coal  Co.  v. 

Doran,  142  U.  S.  417  335 

Sinnott    v,    Davenport,    22 

How.  227  524 

Smoot  V.  Judd,  184  Mo.  508  442 
Snyder  v.  Stribling,  18  Okla. 

168  261 

Soper  V,  Lawrence  Brothers 

Co.,  201  U.  S.  359  22 

Southern  Ry.  Co.  v.  St.  Louis 

Hay  Co.,  214  U.  S.  297  105 
Southern  Ry.  Co.  v.  Tift,  206 

U.  S.  428  500 

St.  Qair  v.  Cox,  106  U.  S.  350  442 
Stanley  County  v.  Coler,  190 

U.  S.  437  359 

State  V.  Bland,  186  Mo.  691  589 
State  V,  Columbia  George,  39 

Ore.  127 ;  S,  C,  201  U.  S. 

641  291 

State  V.  Mayor  <&c.  of  New 

Orleans,  119  La.  623  173 

SUte  ex  rd.  v.  Road  Co.,  207 

Mo.  54  339 

State  ex  rel.  Flaherty  v.  Han- 
son, 16  No.  Dak.  347  519-523 
State  ex  rel,  Haskell  v,  Hus- 
ton, 21  Okla.  782  592 
Steamship   Co.  v.  Tugman, 

106U.  S.  118  324 

Stephens  v.  Cherokee  Nation, 

174  U.  S.  445  61 

Stemaman,  Ex  parte,  77  Fed. 

Rep.  595  230 

Stone  V.  South  Carolina,  117 

U.  S.  430  324 


PAGE 


Stringfellow  v.  Cain,  99  U.  S. 

610  155 

Stuart  V.  Hauser,  203  U.  S. 

585  585 

Stupp,  In  re,  12  Blatch.  501    407 
Sunaerland  Bros.  v.  Chicago, 

R.  I.  &  P.  Ry.  Co.,  158 

Fed.  Rep.  877  507 

Suydam  v.  Broadnax,  14  Pet. 

67  43 

Swice   V.   Maysville   &   Big 

Sandy  Ry.  Co.,  116  Ky. 

252  318,  330 

Swift  V.  Tyson,   16  Pet.   1 

364,  370,  371 
Sylvester  v,  Washington,  46 

Wash.  585  85 

Taylor  v.  Beckham,  178  U.  S. 

548  592 

Tees,  The,  Lush,  505  140 

Tennessee  v.  Davis,  100  U.  S. 

257  507 
Tennessee  v.  Union  &  Plant- 
ers' Bank,  152  U.  S.  454       514 

Terlinden  v.  Ames,  184  U.  S. 
270  407 

Texas  &  Pacific  Ry.  Co.  v. 
Abilene  Cotton  Oil  Co.,  204 
U.  S.  426    464,  493,  494, 

498,500 

Thomas  v.  State,  209  U.  S. 

258  257 
Tift  V.  Southern  Ry.  Co.,  123 

Fed.  Rep.  789  507 

Toledo,  A.  A.  &  N.  M.  Ry. 
Co.  V.  Pennsylvania  Co., 
54  Fed.  Rep.  730  507 

Toy  Toy  v.  Hopkins,  212 
tJ.  S.  542  291 

Traction  Co.  v.  Mining  Co., 
196  U.  S.  239  325 

Traer  v.  Chicago  &  Alton  R. 
R.  Co.,  13 1.  C.  C.  Rep.  451  464 

Trustees  of  Union  College  v. 
aty  of  New  York,  173 
N.  Y.  38  576 

Tyler  v.  Judges  of  Registra- 
tion, 179  U.  S.  405  346 

Tynan  v.  Warren,  53  N.  J. 
Eq.  313  578 

Union  Pacific  Ry.  Co.  v, 
Douglas  County,  31  Fed. 
Rep.  540  389,  391 


xliv 


TABLE  OF  CASES  CITED. 


PAGE 


V\s\\i\\  IVirti'  It  H.v.  Harris, 

m  K»*H  yAft  388 

IthlUitl  H\tx\m  V.  Halt.  <&  Ohio 

M    M  ,  Ift4  I' ml.  llep.  108     491 
UhMm(I  HttitHN  V.  Bait.  <&  Ohio 

H     Co.,    16ft    Fed.    Rep. 

\\l\  492 

I  lull  lid  HiiiieH  V,  Bartow,  10 

\iml  lt«p,  874  238,239 

1 1(11 1  mt   HtatftH  V.   Braun  & 

KaU,  IftHFed.  Ilep.  456        54 
|/uit4iil   HtateH  v.   Celestine, 

'il5U,  H.  278  294,295 

VuiUiil  Htates  v.  Qark,  200 

fl.  H.  rJOl  87 

Unitml  Htates  v.  Clarke,  8 

I 'at.  436  415 

UiiiUid  Htates  v.  Ferreira,  13 

IU)W,  40  224 

Uiuted  Htates  v.  Guglard,  79 

Vml  llcp.  21  334 

IJiiited  Htates  v.  Hartwell,  6 

Wall.  385  242 

United  Htates  v,  Hermanos, 

209  U.  H.  337  396 

United  Htates  v.  Rowland,  4 

Wheat.  108  364 

United  Htates  v.  Keitel,  211 

U.  H.  370    31,   195,   196, 

237  294 
United  Htates  v.  Larkin,  208 

U.  H.  333  137,  587 

United  Htates  v.  Le  Bris,  121 

U.  H.  278  285 

United  Htates  v.  McBratney, 

104  U.  B.  621  295 

United    Htates    v.     Mission 

Ilock  Ck).,  189  U.  H.  391         79 
United  Htates  v.  Mullin,  71 

Fed.  Rep.  682  291,  296 

United  Htates  v.  Nishimiya, 

137  Fed.  Rep.  396;  S.  C, 

69  C.  C.  A.  588  393,  397 

United  Htates  v,  Perrin,  131 

U.  H.  55  221 

United  Htates  v.  Rickert,  188 

U.  H.  432  296 

United  Htates  v.  Rider,  163 

U.  H.  132  221 

United  Htates  v.  Rio  (irande 

Irrigation  Co.,   174  U.  H. 

690  267,  268 

United  Htates  v.  Rio  Grande 


PAOB 


Dam  &  Irrigation  Co.,  184 

U.  H.  416  268 

United  Htates  v.  Hnyder,  149 

U.  H.  210  525 

United  Htates  v,  Htevenson, 

215  U.  H.  190  202,  203 

United  Htates  v.  Union  Hup- 

ply  Co.,  215  U.  H.  50      32,  243 
United  Htates  v.  Vallejo,  1 

Black,  541  415 

United  Htates  v,  Winans,  198 

U.  H.  371  79 

United  Htates  v,  Yale  Todd, 

13  How.  40  224 

United  Htates  ex  rel.  Pitcaim 

Coal  Co.  V.  B.  &  O.  R.  R. 

Co.,  165  U.H.  113  461 

Van    Hoffman    v.    City    of 

Quincy,  4  Wall.  535  178 

Van  Zandt  v.  Hanover  Nat. 

Bank,  149  Fed.  Rep.  127 

112,  123 
Vick  V,  The  Mayor,  1  How. 

(Miss.)  379  362 

Wabash  R.  R.  Co.  v.  Adel- 

bert  College,  208  U.  H.  38      92 
Wabash  Western  Ry.  Co.  v. 

Brow,  164  U.  H.  271    441,  444 
Wagg  V.  Herbert,   19  Okla. 

525  548 

Walden  v,  Bodley,   14  Pet. 

156  45 

Waldron    v.    Waldron,    156 

U.  H.  361  545 

Walker  v.  Robbins,  14  How. 

584  443 

Washington  &  Idaho  R.  R. 

Co.  V.  Osbom,  160  U.  H.  103  390 
Waters-Pierce    Oil    Co.     v, 

Texas,  212  U.  H.  86,  112      590 
Watkins  v.  Holman  et  cU,,  16 

Pet.  25  9 

Watts  V.  Watts,   160  Mass. 

464  214 

Watts  et  al.  v.  Waddle  et  al,, 

6  Pet.  389  8,  13 

Webster  v.  Cooper,  10  How. 

54  221 

Wecker  v.  National  Enamel- 
ing Co.,  204  U.  H.  176 

316,  326,  328,  329,  330 
West  V.  Hitchcock,  205  U.  H. 

80  63 


TABLE  OF  CASES  CITED. 


xlv 


PAGE 


Western  Loan  &  Savings  Co. 

V.  Butte  &  Boston  Con. 

Mining  Co.,  210  U.  S.  368 

443,508 
Western  Pacific  R.  R.  Co.  v, 

Tevis,  41  Cal.  489  391 

Wheaton  1?.  Peters,  8  Pet.  591  188 
Whitcomb  v.  Smithson,  175 

U.  S.  635  250,  251,  316 

White  V.  Leovy,  134  U.  S.  91  583 
White-Smith  Music  Pub.  Co. 

V.  Apollo  Co.,  209  U.  S.  1  188 
White  V.  Turk,  12  Pet.  238  221 
Whitney  v.   United  States, 

181  U.  S.  104  416 

WilUaros  v.  Morris,  95  U.  S. 

444  451 


PAOB 


Willson  i;.   Blackbird  Creek 

Marsh  Co.,  2  Pet.  245  524 

Wilson  V.  North  Carolina,  169 

U.  S.  586  583 

Wilson  17.  Standefer,  184  U.  S. 

399  436 

Wmn,  In  re,  213  U.  S.  458  587 
Winters  v,  Duluth,  82  Minn. 

127  32 

Wolff  V.  New  Orleans,   103 

U.  S.  358  176,  180 

Woods  V,  Carl,  203   U.   S. 

358  526 

Yates  17.  Milwaukee,  10  Wall. 

497  364 

Yordi,  Ex  parU,   166  Fed. 

Rep.  921  229 


TABLE  OF  STATUTES 


CITED  IN  OPINIONS 


(A.)  Statutes  of  the  Unitbd  States. 


PAQB 

1789,  Sept.  24,  1  Stat.  73. . .     43 
1802,  Apr.  29,   §  6,  2  Stat. 

156,  c.  31 222 

1820,  Apr.  24,  3  Stat.  566, 

C.51 71 

1832,  Laws  of  1832,  c.  174, 

S  4i  4  Stat.  564 295 

1834,  June  30,   c.   CLXI,  4 

Stat.  729 284 

1850,  Sept.  27,  9  Stat.  496, 

C.76 71,77,83 

§4 ..85,86 

§  8 86 

1853,  Mch.  2,  10  Stat.  172, 

c.  90 84 

§  13 85 

1854,  July  17,  §  2,  10  Stat. 

305,  c.  84 86 

1862,  July  1,   12  Stat.  489, 

c.  120 386,389,390 

1863,  Laws  of  1863,  c.  76, 

§  1,  12  Stat.  738 32 

1864,  June  3,  §  53,  13  Stat. 
116,  c.  106 241 

1864,  June  30,  $  13,  13  Stat. 

306,  c.  174 225 

1864,  July  2,   13  Stat.  356, 

C.216 387,389,390 

1866,  July  3,  14  Stat.  79,  c. 

159 387,  389 

1872,  June  1,  17  Stat.  196, 

c.  255    222 

187*4,  Laws  of  1874,  "c.  391, 

§  12,  18  Stat.  188 32 

1875,  Feb.  8,  §  16,  18  Stat. 
307,  c.  36,  as  amended 
by  §  4  of  act  of  Mch.  1, 
1879,  20  Stat.  327,  c. 

125 518 

§  18 517 

1875,  Mch.  3,  18  Stat.  482, 
c.  152 390 


PAOB 

1875,  Mch.  3,  SI)  18  Stat. 
470,  c.  137,  as  amended  by 
act  of  Mch.  3, 1887, 24  Stat. 
552,  c.  373,  as  corrected  by 
act  of  Aug.  13,  1888,  25 
Stat.  433,  c.  866 505,  506 

1877,  Feb.  27,  19  Stat.  240, 

Q^    QQ gjg 

1879,  Mch.  1,  §  4,  20  Stat. 
327,  c.  125 517 

1883,  Mch.  3,  c.  121,  Sched- 
ule A,  22  Stat.  488 396 

1885,  Mch.  3,  23  Stat.  385, 
c.  341 283,288 

1887,  Feb.  4,  24  Stat.  379 

217,  475,  477,  497,  498,  499 

1887,  Feb.  8,  24  Stat.  388, 
C.119 287,288,289,291 

1887,  Mch.  3,  24  Stat.  552, 

c.  373 506 

1888,  Aug.  13,  25  Stat.  433, 

c.  866..  .506,  510,  511,  512,  514 

1889,  Feb.  22,  §  4,  25  Stat. 
677,  c.  180 295 

1889,  Mch.  2,  S  10,  25  Stat. 
855,  c.  382 497,499 

1890,  Oct.    1,    par.    329,    c. 

1244,  26  Stat.  567...  396 
§41 54 

1890,  Laws  of  June  10,  c. 
407,  §9,  26  Stat.  130 26 

1891,  Mch.  3,  26  Stat.  826. .  220 
S5,  c.  517  134,137,438,440 

§6 223,353,355 

§11 543 

1891,  Mch.  3,  §§20,  21,  26 
Stat.  1095-1102,  c.  561 

268,  270,  271,  277, 278 

1894,  Aug.  13,  28  Stat.  278, 
c.  280 536,537,538 

1897,  Jan.  15,  29  Stat.  487, 
c.  29 283 

(xlvii) 


xlviii 


TABLE  OF  STATUTES  CITED. 


PAOB 


1897,  Jan.  20,  §  5,  29  Stat. 

492,  c.  68 438,440 

1897,  Jan.  30,  29  SUt.  506 

293  294 

1897,  July  24,  30  Stat.  151,' 

c.  11 392,393 

1398,  June  28,  §  11,  30  Stat. 

495,  c.  517 61 

§  12 62 

§21 61 

§29 62 

1898,  July  1,  §  256,  30  Stat. 
544 \  ^   544 

1901,  Mch.  2,   31  Stat.  895^ 
910,  c.  803 24 

1901,  Mch.  3,  31  Stat.  1058, 

c.  832 61 

1902,  May  9,  §§  2,  5,  6,  32 
Stat.  193,  c.  784 54 

1902,  July  1,  32  Stat.  641, 
c.  1362 62 

1902,  July  1,  32  Stat.  691, 

c.  1369 22,23,24,25 

1903.  Feb.  11,  32  Stat.  823 

217,  218,  223,  226 
1903,  Mch.  3,  32  Stat.  1213, 
c.  1012 198 

1905,  Feb.  24,  33  Stat.  811, 

c.  778 536,537,538 

1906,  Apr.  26,  §  2,  34  SUt. 
137,0.1876 61,62 

1906,  May  8,  34  Stat.  182, 

c.  2348 291 

1906,  June  11,  34  SUt.  232, 

C.3073 91,93,95 

1906,  June  29,  §  6,  34  SUt. 

584,0.3591 104 

§15 105,469,475,494 

§16 467,  498 

1906,  June  29,  34  SUt.  595 
§16 217,219 

1907,  Feb.   20,    §§  4,   5,   34 
SUt.  898, 0.1134.-194,196 

198  203 
1907,  Mch.  2,  34  SUt.  1246,' 
0.  2564.  ...28,   194,   195, 

280  283  294 
1909,  Aug.  5, 36  SUt.  11,  o.  6  397 


1910,  Penal  Code  effective 
Jan.  1,1910  (§335,  c.  321, 
35  Stat.  1088) 19 

Revised  Statutes. 


§ 
I 
§ 
§ 
§ 
I 
I 
I 


1 54,55 

650 223 

652 223 

654 223 

693 223 

697 223 

709 92 

737 47 

§    906 92 

§    914 260,443 

§    997 544 

§  1008 544 

§  1012 543 

§  2139 295 

I  2332 22,24 

§  2380 288 

§  2387 149,   150, 

153, 154, 155 

§  2844 87 

§§  3232,3233 517 

§  3239  as  amended  by 
act  of  Feb.  27,  1877, 

19  SUt.  240,  c.  69 518 

§  3240 518 

§  3243 518 

§  3317 541 

§  4892 168 

§  4952  as  amended  in 
1891   (3  Comp.  SUt., 

§3406) 188 

§  4953 188 

§  4954 189 

§  4965 186 

§  5209 236,  237, 

238,  240,  241 

§  5211 240 

§  5219 345,347 

§  5240 240 

§  5278 66,  67 

§§  5339-5391,  as  amend- 
ed by  act  of  Jan.  15, 
1897,29  SUt.  487,0. 29  283 

§  5440 202,203 

§  5596 285 


(B.)  Statutes  of  the  States  and  Territories. 


Georgia. 

avil  Code,  1895,  §  3589  335 
§  3878 334 


Georgia — (cont.) . 
§  4927. . . 


334 


TABLE  OF  STATUTES  CITED. 


xlix 


PAGB 


Idaho. 

1866,  Act  reincorporat- 
ing city  of  Lewiston. .   151 
1873,    Jan.   8,    7   Sess. 

Laws,  p.  16 152 

lo^^a 

Code,  i  1305 348 

1322 347 

1373 344 


1868,  Gen.  Stat.  Kan. 

1868,  c.  23,  §24...  382 

§  27 381 

§  32 379,380,381 

i  46 380,381 

1868,  Gen.  Stat.  Kans. 

1868,  c.  23,  §  40,  as 

amended  by  Laws, 

1883,  c.  46,  §1, 

Mch.  7 379 

§  44 380 

I  40 3gQ 

1879,  Laws  of  1879,  ch. 
88,  §1 381 

1889,  Gen.  Stat.  Kans. 
1889,  par.  1192. .. .  379 

Par.  1184 381 

Par.  1200 379 

Par.  1204 380 

Par.  1206 380 

1898,  Laws,  1898,  ch.  10, 

i  14 380,  381 

i  15 381 

1898,  Laws  of  Kans., 
Special  Session,  §  12, 

p.  33 381,382 

1899,  Laws  of  Kans. 
1899 382,  384,  385 

1901,  Gen.  Stats.  1901, 

par.  1302 380,381 

Const.,  Art.  12,  j  2, . . . .  379 
Louisiana. 

1868,  Act  of  Sept.  14, 1868, 

§29 171,  173,  181 

1870.  Acts  of  1870,  No. 

5 173, 175, 178, 

180, 181 
1877,  Act  of  Mch.  31, 

1877 172,  181 

Massachusetts. 

1822,  Const.  1822 ;  Pub. 
Stat.  1882,  p.  871, 
c.  166 214 


PAGE 

Minnesota. 

1866,  Stats.  1866,  Titles 
I  and  II  of  Ch.  XXXIV 

422,  423,  425,  436 

1870,  Feb.  28,  §46 424 

1873,  Bissell's  Stat.  1873, 

pp.  419, 443..  422,  423,  424 
1879,  Mch.  4,  Laws  of 
Minn.    1879,   p.   410, 

c.  299 421,  428, 

430,  431,  436,  437 
Mississippi. 

Code,  §1043 65,67 

Missouri. 

1853,  Feb.  24,  Laws  of 
1853,  pp.  337, 338  339, 340 
Nebraska. 

1901,  276  Comp.  Stat. 

1901,  ch.  25 5 

New  Mexico. 

1897,  Compiled  Laws  for 

1897,   §2764 303 

1903,    Mch.    11,   c.    33, 
p.  51,  Acts  35th  Leg. 

Assemb 90 

1903,   Session  Laws  of 

1903,  ch.  20 304,305 

1907,    Compiled    Laws, 

1907,  Title  33 271 

Code  of  Civil  Procedure, 
c.  1,  Art.  4,  sub.  sec. 

46 271 

Sub.  sec.  87 275 

Code  of  Civil  Procedure, 
§  104,  as  amended  by 
c.  11  of  Laws  of  1901  276 
Laws  of  Territory,  §  897 

306,  307 

§  2771 306 

§  2772 306 

North  Dakota. 

1907,  Mch.  13,  Laws  N. 
Dak.    1907,    p.    307 

518,  520,  521 
Oklahoma. 

1903,     Wilson's    Stats. 
Okla.  1903,  §  746. . . .  265 

§    809 265 

§  4344 265 

Philippine  Islands. 

Organic  Act,  §10 22 

§  16 23,25 

22 23 


TABLE  OF  STATUTES  CITED. 


Philippiae  Islands  (oonJ.). 

i  28 24 

I  45 22,  24 

Civil  Code,  Arts.  1953, 

1957 414 

Art.  1952 414,416 

Code  of  Procedure  in 
Gvil  Actions,  Aug.  7, 
1901,  No.  190,  1 40. .     22 

1  Pub.  Laws  of  Phil. 
Com.  378,  384 22 

PutidAa,l.  18,T.29,p.3  416 

RecopiladoD  de  Leyee 
de  las  Indias,  Book  4, 
TiUel2,Lawl 415 


South  Carolina. 

Code    of    Procedure, 

lino,  171 258 

Washington. 

1855,  Territorial  Act  of 

Jan.  9,  1855 84 

1855,  Territorial  Act  of 

June  28,  1855 84 

1895,Act£of  1895,  c.  95, 

p.  188 85 

1907,  Feb.  4 73,75 

Code,  1 2007  (DOW  4637)       3 
Const.  Art.  XVII 73 


1855,  Jan.  22,  12  Stat. 


927.. 


1355,  June  9, 12  Stat.  951  293 
Choctaw  Indians. 

1820,  Oct.  18,  7  Stat.  210     59 
1830,  Sept.  27,  Art.  2, 

78tat.333 57,58,59 

Arta.4,  5 60 

Choctaw  and  Chickasaw  Indians. 
1837,  Met..  24,  Jl  Stat. 


573.. 


Choctaw  and  Chickasaw  Indians 

(twni.). 

1355,  June  22,  11  Stat. 


611.. 


62 


Apr.  28,  Arts.  U- 

36,  14  Stat.  769 62 

Omalia  Indiaiu. 

1854,  Hch.  16,  10  Stat. 
1043 286,288,295 

Tulalip  Indians. 

1855,  Jan.  22,  12  Stat. 
927 280 


CASES  ADJUDGED 


IN  THE 


SUPREME  COURT  OF  THE  UNITED  STATES 


AT 


OCTOBER  TERM,  1909, 


FALL  V.  EASTIN. 


ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  NEBRASKA. 
No.  24.    Submitted  April  30,  1909.— Decided  November  1,  1909. 

While  a  court  of  equity  acting  upon  the  person  of  the  defendant  may 
decree  a  conveyance  of  land  in  another  jurisdiction  and  enforce  the 
execution  oTlhe  decree  by  process  against  the  defendant,  neither  tho 
decree,  nor  any  conveyance  under  it  except  by  the  party  in  whom 
title  is  vested,  is  of  any  efficacy  beyond  the  jurisdiction  of  the  court. 
CarbeU  v.  NuUy  10  Wall.  464. 

A  court  not  having  jurisdiction  of  the  res  cannot  affect  it  by  its  decree 
nor  by  a  deed  made  by  a  master  in  accordance  with  the  decree. 

Local  legislation  of  a  State  as  to  effect  of  a  decree,  or  a  conveyance 
made  by  a  master  pursuant  thereto,  on  the  res  does  not  apply  to  the 
operation  of  the  decree  on  property  situated  in  another  State. 

The  full  faith  and  credit  clause  of  the  Constitution  does  not  extend  the 
jurisdiction  of  the  coiuts  of  one  State  to  property  situated  in  another 
State,  but  only  makes  the  judgment  conclusive  on  the  merits  of  the 
claim  or  subject-matter  of  the  suit;  and  the  courts  of  the  State  in 
which  land  is  situated  do  not  deny  full  faith  and  credit  to  a  decree  of 
courts  of  another  State,  or  to  a  master's  deed  thereunder,  by  holding 
that  it  does  not  operate  directly  upon,  and  transfer  the  property. 

75  Nebraska,  104,  affirmed. 

VOL.  CCXV — 1  (1) 


2  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  J,  Greene,  Mr,  Ralph  W.  Breckenridge  and 
Thomas  H.  Matters,  for  plaintiff  in  error. 

There  was  no  appearance  or  brief  for  defendant  in  error. 
Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

The  question  in  this  case  is  whether  a  deed  to  land  situate 
in  Nebraska,  made  by  a  commissioner  under  the  decree  of  a 
court  of  the  State  of  Washington  in  an  action  for  divorce, 
must  be  recognized  in  Nebraska  under  the  due  faith  and 
credit  clause  of  the  Constitution  of  the  United  States. 

The  action  was  begun  in  Hamilton  County,  Nebraska,  in 
1897,  to  quiet  title  to  the  land  and  to  cancel  a  certain  mort- 
gage thereon,  given  by  E.  W.  Fall  to  W.  H.  Fall,  and  to  can- 
cel a  deed  executed  therefor  to  defendant  in  error,  Elizabeth 
Eastin. 

Plaintiff  alleged  the  following  facts:  She  and  E.  W.  Fall, 
who  was  a  defendant  in  the  trial  court,  were  married  in  Indi- 
ana in  1876.  Subsequently  they  went  to  Nebraska,  and 
while  living  there,  '*by  their  joint  efforts,  accumulations  and 
earnings,  acquired  jointly  and  by  the  same  conveyance"  the 
land  in  controversy.  In  1889  they  removed  to  the  State  of 
Washington,  and  continued  to  reside  there  as  husband  and 
wife  until  January,  1895,  when  they  separated.  On  the 
twenty-seventh  of  February,  1895,  her  husband,  she  and  he 
then  being  residents  of  King  County,  Washington,  brought 
Huit  against  her  for  divorce  in  the  Superior  Court  of  that 
(!ounty.  He  alleged  in  his  complaint  that  he  and  plaintiff 
w(?re  bona  fide  residents  of  King  County,  and  that  he  was  the 
owner  of  the  land  in  controversy,  it  being,  as  he  alleged,  "his 
Hcparate  property,  purchased  by  money  received  from  his 
parentH.'^  Ho  prayed  for  a  divorce  and  "for  a  just  and  equi- 
t/ihle  division  of  the  property." 

PlaintifT  appeared  in  the  action  by  answer  and  cross  com- 


FALL  V.  EASTIN.  3 

215  U.  S.  OpinioD  of  the  Court. 

plaint,  in  which  she  denied  the  allegations  of  the  complaint, 
and  alleged  that  the  property  was  community  property,  and 
"was  purchased  by  and  with  the  money  and  proceeds  of  the 
joint  labor"  of  herself  and  husband  after  their  marriage.  She 
prayed  that  a  divorce  be  denied  him,  and  that  the  property 
be  set  apart  to  her  as  separate  property,  subject  only  to  a 
mortgage  of  $1,000,  which  she  alleged  was  given  by  him  and 
her.  In  a  reply  to  her  answer  and  cross  complaint  he  denied 
that  she  was  the  "owner  as  a  member  of  the  community  in 
conjunction"  with  him  of  the  property,  and  repeated  the 
prayer  of  his  complaint. 

Plaintiff  also  alleges  that  the  Code  of  Washington  con- 
tained the  following  provision : 

"Sec.  2007  [now  4637].  In  granting  a  divorce,  the  court 
shall  also  make  such  disposition  of  the  property  of  the  parties 
as  shall  appear  just  and  equitable  having  regard  to  the  respec- 
tive merits  of  the  parties  and  to  the  condition  in  which  they 
will  be  left  by  such  divorce,  and  to  the  party  through  whom 
the  property  was  acquired,  and  to  the  burdens  imposed  upon 
it  for  the  benefit  of  the  children,  and  shall  make  provision 
for  the  guardianship,  custody  and  support  and  education  of 
the  minor  children  of  such  marriage." 

She  further  alleges  that  that  provision  had  been  construed 
by  the  Supreme  Court  of  the  State  requiring  of  the  parties  to 
an  action  for  divorce  to  bring  into  court  all  of  "  'their  prop- 
erty, and  a  complete  showing  must  be  made, '  "  and  that  it 
was  decided  that  §  2007  [now  4637]  conferred  upon  the  court 
"  'the  power,  in  its  discretion,  to  make  a  division  of  the  sep- 
arate property  of  the  wife  or  husband. '  " 

She  further  alleges  that  a  decree  was  entered  granting  her 
a  divorce  and  setting  apart  to  her  the  land  in  controversy  as 
her  own  separate  property  forever,  free  and  unencumbered 
from  any  claim  of  the  plaintiff  thereto,  and  that  he  was  or- 
dered and  directed  by  the  court  to  convey  all  his  right,  title 
and  interest  in  and  to  the  land  within  five  days  from  the  date 
of  the  decree. 


4  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

She  also  alleges  the  execution  of  the  deed  to  her  by  the 
commissioner  appointed  by  the  court,  the  execution  and  re- 
cording of  the  mortgage  to  W.  H.  Fall  and  the  deed  to  defend- 
ant; that  the  deed  and  mortgage  were  each  made  without 
consideration  and  for  the  purpose  of  defrauding  her,  and  that 
they  cast  a  cloud  upon  her  title  derived  by  her  imder  the 
decree  of  divorce  and  the  commissioner's  deed.  She  prays 
that  her  title  be  quieted  and  that  the  deed  and  mortgage  be 
declared  null  and  void. 

W.  H.  Fall  disclaimed  any  interest  in  the  premises,  and 
executed  a  release  of  the  mortgage  made  to  him  by  E.  W.  Fall. 
Defendant  answered,  putting  in  issue  the  legal  sufficiency  of 
the  complaint,  and,  in  addition,  set  forth  the  fact  of  the  loan 
of  $1,000  to  E.  W.  Fall,  the  taking  of  a  note  therefor  signed 
by  him  and  William  H.  Fall,  the  giving  of  an  indemnity  mort- 
gage to  the  latter,  and  the  execution  subsequently  of  a  deed 
by  E.  W.  Fall  in  satisfaction  of  the  debt.  No  personal  service 
was  had  upon  E.  W.  Fall,  and  he  did  not  appear.  A  decree 
was  passed  in  favor  of  plaintiff,  which  was  affirmed  by  the 
Supreme  Court.  FaU  v.  Fott,  75  Nebraska,  104 ;  106  N.  W.  Rep. 
412.  A  rehearing  was  granted  and  the  decree  was  reversed. 
Judge  Sedgwick,  who  delivered  the  first  opinion,  dissenting. 

There  is  no  brief  for  defendant  in  this  court,  but  the  con- 
tentions of  the  parties  and  the  argument  by  which  they  are 
supported  are  exhibited  in  the  opinions  of  the  Supreme  Court. 

The  question  is  in  narrow  compass.  The  full  faith  and 
credit  clause  of  the  Constitution  of  the  United  States  is 
invoked  by  plaintiff  to  sustain  the  deed  executed  under  the 
decree  of  the  court  of  the  State  of  Washington.  The  argu- 
ment in  support  of  this  is  that  the  Washington  court,  having 
had  jurisdiction  of  the  parties  and  the  subject-matter,  in 
determination  of  the  equities  between  the  parties  to  the 
lands  in  controversy,  decreed  a  conveyance  to  be  made  to  her. 
This  conveyance,  it  is  contended,  was  decreed  upon  equities, 
and  was  as  effectual  as  though  her  '' husband  and  she  had 
been  strangers  and  she  had  bought  the  land  from  him  and 


FALL  V,  EASTIN.  6 

215  U.  S.  Opinion  of  the  Court. 

paid  for  it  and  he  had  then  refused  to  convey  it  to  her."  In 
other  words,  that  the  decree  of  divorce  in  the  State  of  Wash- 
ington, which  was  made  in  consummation  of  equities  which 
arose  between  the  parties  under  the  law  of  Washington,  was 
"evidence  of  her  right  to  the  legal  title  of  at  least  as  much 
weight  and  value  as  a  contract  in  writing,  reciting  the  pay- 
ment of  the  consideration  for  the  land,  would  be." 

The  defendant,  on  the  other  hand,  contends,  as  we  gather 
from  his  petition  for  a  rehearing  in  the  Supreme  Court  of  the 
State  and  from  the  opinions  of  the  court,  that  "the  Wash- 
ington court  had  neither  power  nor  jurisdiction  to  effect  in 
the  least,  either  legally  or  equitably,"  lands  situated  in 
Nebraska.  And  contends  further  that  by  the  provision  of 
ch.  25,  276  Comp.  St.  1901,  Neb.,  a  court  had  no  jurisdiction 
to  award  the  real  estate  of  the  husband  to  the  wife  in  fee  as 
alimony,  and  a  decree  in  so  far  as  it  attempts  to  do  so  is  void 
and  subject  to  collateral  attack.  For  this  view  are  cited 
Cissdc  V.  Cizek,  69  Nebraska,  797,  800;  Aldrich  v.  Stem,  100 
N.  W.  Rep.  311,  312. 

The  contentions  of  the  parties,  it  will  be  observed,  put  in 
prominence  and  as  controlling  dififerent  propositions.  Plain- 
tiff urges  the  equities  which  arose  between  her  and  her  hus- 
band, on  account  of  their  relation  as  husband  and  wife,  in  the 
State  of  Washington,  and  imder  the  laws  of  that  State.  The 
defendant  urges  the  policy  of  the  State  of  Nebraska,  and  the 
inability  of  the  court  of  Washington  by  its  decree  alone  or 
the  deed  executed  through  the  commissioners  to  convey  the 
land  situate  in  Nebraska.  To  the  defendant's  view  the  Su- 
preme Court  of  the  State  finally  gave  its  assent,  as  we  have 
seen. 

In  considering  these  propositions  we  must  start  with  a  con- 
cession of  jurisdiction  in  the  Washington  court  over  both  the 
parties  and  the  subject-matter.  Jurisdiction  in  that  court  is 
the  first  essential,  but  the  ultimate  question  is,  What  is  the  ef- 
fect of  the  decree  upon  the  land  and  of  the  deed  executed  under 
it?    The  Supreme  Court  of  the  State  concedes,  as  we  under- 


6  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

stand  its  opinion,  the  jurisdiction  in  the  Washington  court 
to  render  the  decree.    The  court  said  (75  Nebraska,  104,  128) : 

"We  think  there  can  be  no  doubt  that  where  a  court  of 
chancery  has  by  its  decree  ordered  and  directed  persons 
properly  within  its  jurisdiction  to  do  or  refrain  from  doing  a 
certain  act,  it  may  compel  obedience  to  this  decree  by  appro- 
priate proceedings,  and  that  any  action  taken  by  reason  of 
such  compulsion  is  valid  and  effectual  wherever  it  may  be 
assailed.  In  the  instant  case,  if  Fall  had  obeyed  the  order 
of  the  Washington  court  and  made  a  deed  of  conveyance  to 
his  wife  of  the  Nebraska  land,  even  imder  the  threat  of  con- 
tempt proceedings,  or  after  duress  by  imprisonment,  the  title 
thereby  conveyed  to  Mrs.  Fall  would  have  been  of  equal  weight 
and  dignity  with  that  which  he  himself  possessed  at  the  time 
of  the  execution  of  the  deed." 

But  Fall,  not  having  executed  a  deed,  the  court's  conclu- 
sion was,  to  quote  its  language,  that  "neither  the  decree  nor 
the  commissioner's  deed  conferred  any  right  or  title  upon  her." 
This  conclusion  was  deduced,  not  only  from  the  absence  of 
power  generally  of  the  courts  of  one  State  over  lands  situate 
in  another,  but  also  from  the  laws  of  Nebraska  providing  for 
the  disposition  of  real  estate  in  divorce  proceedings.  The 
court  said  (75  Nebraska,  133) : 

"  Under  the  laws  of  this  State  the  courts  have  no  power  or 
jurisdiction  in  a  divorce  proceeding,  except  as  derived  from 
the  statute  providing  for  such  actions,  and  in  such  an  action 
have  no  power  or  jurisdiction  to  divide  or  apportion  the  real 
estate  of  the  parties.  Nygren  v.  Nygren,  42  Nebraska,  408; 
lirotherton  v.  BrotherUm,  15  N.  W.  Rep.  347;  Cizek  v.  Cizek, 
m  Nebmska.  797;  Aldrkh  v.  Steen,  100  N.  W.  Rep.  311.  In 
Cizek  v.  Cizeky  Cizek  brought  an  action  for  divorce  and  his 
wife  fiUnl  a  cross  bill  and  asked  for  alimony.  The  court  dis- 
missed t  he  husband^s  bill,  found  in  favor  of  the  wife,  and,  by 
stipulation  of  the  parties,  set  off  to  the  wife  the  homestead 
and  onlonnl  her  to  execute  to  the  husband  a  mortgage  thereon, 
t  huH  endeavoring  to  make  an  equitable  division  of  the  property. 


FALL  V.  EASTIN.  7 

215  U.  S.  Opinion  of  the  Court. 

Afterwards  in  a  contest  arising  between  the  parties  as  to  the 
right  of  possession  of  the  property,  the  decree  was  pleaded  as 
a  source  of  title  in  the  wife,  but  it  was  held  that  that  portion 
of  the  decree  which  set  off  the  homestead  to  the  wife  was  ab- 
solutely void  and  subject  to  collateral  attack,  for  the  reason 
that  no  jurisdiction  was  given  to  the  District  Court  in  a  di- 
vorce proceeding  to  award  the  husband's  real  estate  to  the 
wife  in  fee  as  alimony.  The  courts  of  this  State  in  divorce 
proceedings  must  look  for  their  authority  to  the  statute,  and 
so  far  as  they  attempt  to  act  in  excess  of  the  powers  therein 
granted  their  action  is  void  and  subject  to  collateral  attack. 
A  judgment  or  decree  of  the  natiu'e  of  the  Washington  decree, 
so  far  as  affects  the  real  estate,  if  rendered  by  the  courts  of 
this  State  would  be  void. 

"The  decree  is  inoperative  to  affect  the  title  to  the  Ne- 
braska land  and  is  given  no  binding  force  or  effect  so  far  as 
the  courts  of  this  State  are  concerned,  by  the  provisions  of 
the  Constitution  of  the  United  States  with  reference  to  full 
faith  and  credit.  Since  the  decree  upon  which  the  plaintiff 
bases  her  right  to  recover  did  not  affect  the  title  to  the  land 
it  remained  in  E.  W.  Fall  until  divested  by  operation  of  law 
or  by  his  voluntary  act.  He  has  parted  with  it  to  Elizabeth 
Eastin  and  whether  any  consideration  was  ever  paid  for  it  or 
not  is  immaterial  so  far  as  the  plaintiff  is  concerned,  for  she 
is  in  no  position  to  question  the  transaction,  whatever  a  cred- 
itor of  Fall  might  be  able  to  do." 

It  is  somewhat  difficult  to  state  precisely  and  succinctly 
wherein  plaintiff  disagrees  with  the  conclusions  of  the  Supreme 
Court.     Counsel  says: 

"  It  is  not  claimed  that  the  Washington  court  could  create 
an  equity  in  lands  in  Nebraska  by  any  finding  or  decree  it 
might  make,  and  thus  bind  the  courts  of  a  sister  State;  but  it  is 
claimed  that  where  rights  and  equities  already  exist,  the  par- 
ties being  within  the  jurisdiction  of  the  court,  it  can  divide 
them  and  apportion  them  by  a  judgment  or  decree  which 


8  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  S. 

would  be  conclusive  upon  the  parties  in  any  subsequent  pro- 
ceeding in  a  court  having  jurisdiction  of  the  lands,  for  the  pur- 
pose of  quieting  the  title  in  the  equitable  owner." 

If  we  may  regard  this  as  not  expressing  a  complete  opposi- 
tion to  the  views  of  the  Supreme  Court,  we  must  at  least  treat 
it  as  contradicting  their  fundamental  principle,  that  is,  that 
the  decree  as  such  has  no  extraterritorial  operation. 

The  territorial  limitation  of  the  jurisdiction  of  courts  of  a 
State  over  property  in  another  State  has  a  limited  exception  in 
the  jurisdiction  of  a  court  of  equity,  but  it  is  an  exception  well 
defined.  A  court  of  equity  having  authority  to  act  upon  the 
person  may  indirectly  act  upon  real  estate  in  another  State, 
through  the  instrumentality  of  this  authority  over  the  person. 
Whatever  it  may  do  through  the  party  it  may  do  to  give  effect 
to  its  decree  respecting  property,  whether  it  goes  to  the  entire 
disposition  of  it  or  only  to  effect  it  with  liens  or  burdens.  Story 
on  Conflict  of  Laws,  §  544.  In  French,  Trustee,  v.  Hay,  22  Wall. 
250,  252,  this  court  said  that  a  court  of  equity  having  jurisdic- 
tion in  personam  has  power  to  require  a  defendant  "  to  do  or  to 
refrain  from  doing  anjrthing  beyond  the  limits  of  its  territorial 
jurisdiction  which  it  might  have  required  to  be  done  or  omitted 
within  the  limits  of  such  territory."  The  extent  of  this  power 
this  court  has  also  defined.  Watts  et  al,  v.  Waddle  et  al.,  6  Pet. 
389,  has  features  like  the  case  at  bar.  The  suit  was  for  the  spe- 
cific performance  of  a  contract  for  the  conveyance  of  land.  It 
became  necessary  to  pass  upon  the  effect  of  a  decree  requiring 
the  conveyance  of  the  lands  concerned.  The  decree  appointed 
a  commissioner  under  a  statute  of  the  State  to  make  the  con- 
veyance in  case  the  defendants  or  any  of  them  failed  to  make 
the  conveyance.  This  court  said:  "A  decree  cannot  operate 
beyond  the  State  in  which  the  jurisdiction  is  exercised.  It  is 
not  in  the  power  of  one  State  to  prescribe  the  mode  by  which 
real  property  shall  be  conveyed  in  another.  This  principle  is 
too  clear  to  admit  of  doubt."  In  reply  to  the  contention  that 
the  deed  of  the  commissioner  was  a  legal  conveyance,  it  was 
said:  "The  deed  executed  by  the  commissioner  in  this  case 


FALL  V.  EASTIN.  9 

215  U.  S.  Opinion  of  the  Court. 

must  be  considered  as  forming  part  of  the  proceedings  in  the 
court  of  chancery,  and  no  greater  effect  can  be  given  to  it  than 
if  the  decree  itself,  by  statute,  was  made  to  operate  as  a  con- 
veyance in  Kentucky  as  it  does  in  Ohio.'' 

In  Waikins  v.  Holman  et  al.,  16  Pet.  25,  57,  passing  on  a  de- 
cree made  by  the  Supreme  Court  in  Massachusetts  by  virtue  of 
a  statute  of  that  State,  it  was  said : 

*'No  principle  is  better  established  than  that  the  disposition 
of  real  estate,  whether  by  deed,  descent  or  by  any  other  mode, 
must  be  governed  by  the  law  of  the  State  where  the  land  is  sit- 
uated." 

And  further: 

"  A  court  of  chancery,  acting  in  personam,  may  well  decree 
the  conveyance  of  land  in  any  other  State,  and  may  well  en- 
force its  decree  by  process  against  the  defendant.  But  neither 
the  decree  itself  nor  any  conveyance  under  it,  except  by  the 
person  in  whom  the  title  is  vested,  can  operate  beyond  the  ju- 
risdiction of  the  court." 

See,  also,  Massie  v.  WattSy  6  Cranch,  148,  and  MiUer  v. 
Sherry,  2  Wall.  237,  248,  249. 

In  Carbett  v.  NuU,  10  Wall.  464,  475,  the  doctrine  was  re- 
peated that  a  court  of  equity  acting  upon  the  person  of  the  de- 
fendant may  decree  a  conveyance  of  land  situated  in  another 
jurisdiction,  and  even  in  a  foreign  country,  and  enforce  the  ex- 
ecution of  the  decree  by  process  against  the  defendant,  but,  it 
was  said :  "  Neither  its  decree  nor  any  conveyance  under  it,  ex- 
cept by  the  party  in  whom  the  title  is  vested,  is  of  any  efficacy 
beyond  the  jurisdiction  of  the  court."  This,  the  court  de- 
clared, was  familiar  law,  citing  WcUkins  v.  Holman,  supra.  See, 
also,  Brine  v.  Insurance  Company,  96  U.  S.  627,  635;  Phelps  v. 
McDonald,  99  U.  S.  308. 

In  Boone  v.  Chiles,  10  Pet.  177,  245,  it  is  said  that  a  com- 
missioner is  in  no  sense  an  agent  of  the  party,  but  is  an  officer 
of  the  court,  and  acts  strictly  under  its  authority. 

Later  cases  assert  the  same  doctrine.  In  Carpenter  v. 
Strange,  141  U.  S.  87, 105,  a  court  of  New  York  had  declared  a 


8  OCTOBER  TERM,  1909. 

Opinion  o(  the  Court.  216  U.  8. 

would  be  conclusive  upon  the  parties  in  any  subsequent  pro- 
ceeding in  a  court  having  jurisdiction  of  the  lands,  for  the  pur^ 
pose  of  quieting  the  title  in  the  equitable  owner." 

If  we  may  regard  this  as  not  expressing  a  complete  opposi- 
tion to  the  views  of  the  Supreme  Court,  we  must  at  least  treat 
it  as  contradicting  their  fundamental  principle,  that  is,  that 
the  decree  as  such  has  no  extraterritorial  operation. 

The  territorial  limitation  of  the  jurisdiction  of  courta  of  a 
State  over  property  in  another  State  has  a  limited  exception  in 
the  jurisdiction  of  a  court  of  equity,  but  it  is  an  exception  well 
defined.    A  court  of  equity  having  authority  to  act  upon  the 
person  may  indirectly  act  upon  real  estate  in  another  State, 
through  the  instrumentality  of  this  authority  over  the  person. 
Whatever  it  may  do  through  the  party  it  may  do  to  give  effect 
to  its  decree  respecting  property,  whether  it  goes  to  the  entire 
disposition  of  it  or  only  to  effect  it  with  liens  or  burdens.   Story 
on  Conflict  of  Laws,  §  544.   In  French,  Trustee,  v.  Hay,  22  Wall. 
250,  252,  this  court  said  that  a  court  of  equity  having  jurisdic- 
tion in  personam  has  power  to  require  a  defendant  "  to  do  or  to 
refrmn  from  doing  anything  beyond  the  limits  of  its  territorial 
jurisdiction  which  it  might  have  required  to  be  done  or  omitted 
within  the  limits  of  such  territory."   The  extent  of  this  power 
this  court  has  also  defined.    Watis  et  al.  v.  Waddle  et  al.,  6  Pet. 
389,  has  features  like  the  case  at  bar.   The  suit  was  for  the  spe- 
cific performance  of  a  contract  for  the  conveyance  of  land.    It 
became  necessary  to  pass  upon  the  effect  of  a  decree  requiring 
the  conveyance  of  the  lands  concern"^     i'^">  'i'">~a  -nr^in*^.^ 
a  commissioner  under  a  statute  of  t 
veyance  in  case  the  defendants  or  a 
the  conveyance.    This  court  said: 
beyond  the  State  in  which  the  juris 
not  in  the  power  of  one  State  to  pp 
real  property  shall  be  conveyed  in  i 
too  clear  to  admit  of  doubt."    In  n 
the  deed  of  the  commissioner  was  i 
said:  "The  deed  executed  by  the 


FALL  V.  EASTIN.  11 

215  U.  S.  Opinion  of  the  Court. 

provide,  by  statute,  that  if  the  defendant  is  not  found  within 
the  jurisdiction,  or  refuses  to  perform,  performance  in  his  be- 
half may  be  had  by  a  trustee  appointed  by  the  court  for  that 
purpose. 

In  Dull  V.  Blackman,  169  U.  S.  243,  246,  247,  while  recog- 
nizing that  litigation  in  regard  to  the  title  of  land  belongs  to 
the  courts  of  the  State  where  the  land  is  so  located,  it  was  said, 
"  although  if  all  the  parties  interested  in  the  land  were  brought 
personally  before  a  court  of  another  State,  its  decree  would  be 
conclusive  upon  them,  and  thus,  in  effect,  determine  the  title." 

But,  however  plausibly  the  contrary  view  may  be  sustained, 
we  think  that  the  doctrine  that  the  court,  not  having  jurisdic- 
tion of  the  res,  cannot  affect  it  by  its  decree,  nor  by  a  deed 
made  by  a  master  in  accordance  with  the  decree,  is  firmly  es- 
tablished. The  embarrassment  which  sometimes  results  from 
it  has  been  obviated  by  legislation  in  many  States.  In  some 
States  the  decree  is  made  to  operate  per  se  as  a  source  of  title. 
This  operation  is  given  a  decree  in  Nebraska.  In  other  States 
power  is  given  to  certain  officers  to  carry  the  decree  into  effect. 
Such  power  is  given  in  Washington  to  commissioners  appointed 
by  the  court.  It  was  in  pursuance  of  this  power  that  the  deed 
in  the  suit  at  bar  was  executed.  But  this  legislation  does  not 
affect  the  doctrine  which  we  have  expressed,  which  rests,  as  we 
have  said,  on  the  well-recognized  principle  that  when  the 
subject-matter  of  a  suit  in  a  court  of  equity  is  within  another 
State  or  coimtry,  but  the  parties  within  the  jurisdiction  of  the 
court,  the  suit  may  be  maintained  and  remedies  granted  which 
may  directly  affect  and  operate  upon  the  person  of  the  defend- 
ant and  not  upon  the  subject-matter,  although  the  subject- 
matter  is  referred  to  in  the  decree,  and  the  defendant  is  ordered 
to  do  or  refrain  from  certain  acts  toward  it,  and  it  Ls  thus  ulti- 
mately but  indirectly  affected  by  the  relief  granted.  In  such 
case  the  decree  is  not  of  itself  legal  title,  nor  does  it  transfer  the 
legal  title.  It  must  be  executed  by  the  party,  and  obedience  is 
compelled  by  proceedings  in  the  nature  of  contempt,  attach- 
ment or  sequestration.    On  the  other  hand,  where  the  suit  is 


12  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

strictly  local,  the  subject-matter  is  specific  property,  and  the 
relief  when  granted  is  such  that  it  must  act  directly  upon  the 
subject-matter,  and  not  upon  the  person  of  the  defendant,  the 
jurisdiction  must  be  exercised  in  the  State  where  the  subject- 
matter  is  situated.  3  Pomeroy's  Equity,  §§  1317,  1318,  and 
notes. 

This  doctrine  is  entirely  consistent  with  the  provision  of  the 
Constitution  of  the  United  States,  which  requires  a  judgment 
in  any  State  to  be  given  full  faith  and  credit  in  the  courts  of 
every  other  State.  This  provision  does  not  extend  the  juris- 
diction of  the  courts  of  one  State  to  property  situated  in  an- 
other, but  only  makes  the  judgment  rendered  conclusive  on  the 
merits  of  the  claim  or  subject-matter  of  the  suit.  "  It  does  not 
carry  with  it  into  another  State  the  eflBcacy  of  a  judgment  upon 
property  or  persons,  to  be  enforced  by  execution.  To  give  it 
the  force  of  a  judgment  in  another  State  it  must  become  a 
judgment  there;  and  can  only  be  executed  in  the  latter  as  its 
laws  permit."    M'Elmoyle  v.  Cohen,  13  Pet.  312. 

Plaintiff  seems  to  contend  for  a  greater  eflBcacy  for  a  decree 
in  equity  affecting  real  property  than  is  given  to  a  judgment  at 
law  for  the  recovery  of  money  simply.  The  case  of  Burnley 
V.  Stevenson,  24  Ohio  St.  474,  478,  in  a  sense  sustains  her. 
The  action  was  brought  in  one  of  the  courts  of  Ohio  for  the  re- 
covery of  the  possession  of  certain  lands.  The  defendant  set 
up  in  defense  a  conveyance  for  the  same  lands  made  by  a  mas- 
ter commissioner,  in  accordance  with  a  decree  of  a  court  in 
Kentucky  in  a  suit  for  specific  performance  of  a  contract  con- 
cerning the  lands.  The  defendant  in  Burnley  v.  Stevenson 
claimed  title  under  the  master's  deed.  The  court  declared  the 
principle  that  a  court  of  equity,  having  the  parties  before  it, 
could  enforce  specific  performance  of  a  contract  for  lands  sit- 
uate in  another  jurisdiction  by  compelling  the  parties  to  make 
a  conveyance  of  them,  but  said  that  it  did  not  follow  that  the 
court  could  "make  its  own  decree  to  operate  as  such  convey- 
ance." And  it  was  decided  that  the  decree  could  not  have 
such  effect,  and  as  it  could  not,  it  was  "  clear  that  a  deed  exe- 


FALL  l;.  EASTIN.  13 

215  U.  S.  Opinion  of  the  Court. 

cuted  by  a  master,  under  the  direction  of  the  court,"  could 
"  have  no  greater  effect."  Watts  v.  Waddle,  supra^  and  Page  v. 
McKee,  3  Bush,  135,  were  cited,  and  the  master's  deed,  the 
court  said,  "must,  therefore,  be  regarded  as  a  nullity."  But 
the  court  decided  that  the  "  decree  was  in  personam  and  bound 
the  consciences  of  those  against  whom  it  was  rendered."  It 
became,  it  was  in  effect  said,  a  record  of  the  equities  which  pre- 
ceded it,  and  of  the  fact  that  it  had  become,  and  it  was  the 
duty  of  the  defendants  in  the  suit  to  convey  the  legal  title  to 
the  plaintiff.  This  duty,  it  was  further  said,  could  have  been 
enforced  "by  attachment  as  for  contempt;  and  the  fact* that 
the  conveyance  was  not  made  in  pursuance  of  the  order  does 
not  affect  the  validity  of  the  decree,  in  so  far  as  it  determined 
the  equitable  rights  of  the  parties  in  the  land  in  controversy. 
In  our  judgment  the  parties,  and  those  claiming  under  them 
with  notice,  are  still  bound  thereby." 

The  court  proceeded  to  say  that  it  might  be  admitted  that 
the  decree  would  not  constitute  a  good  defense  at  law,  but  that 
it  was  a  good  defense  in  equity,  as  under  the  code  of  Ohio  eq- 
uitable as  well  as  legal  defenses  might  be  set  up  in  an  action 
for  the  recovery  of  land,  and  from  this,  and  the  other  proposi- 
tions that  were  expressed,  concluded  that  as  the  decree  had  the 
effect  in  Kentucky  of  determining  the  equities  of  the  parties  to 
the  land  in  Ohio,  the  courts  of  the  latter  State  "must  accord  to 
it  the  same  effect"  in  obedience  to  the  due  faith  and  credit 
clause  of  the  Constitution  of  the  United  States.  "True,"  the 
court  observed,  "  the  courts  of  this  State  cannot  enforce  the 
performance  of  that  decree,  by  compelling  the  conveyance 
through  its  process  of  attachment;  but  when  pleaded  in  our 
courts  as  a  cause  of  action,  or  as  a  ground  of  defense,  it  must 
be  regarded  as  conclusive  of  all  the  rights  and  equities  which 
were  adjudicated  and  settled  therein,  unless  it  be  impeached 
for  fraud.  See  cases  supra;  also  Davis  v.  Headley,  22  N.  J.  Eq. 
115;  Braum  v.  L.  &  D,  R,  R.  Co.,  2  Beasley  Eq.  (N.  J.)  191; 
Dobson  V.  Pierce,  2  Keman,  156 ;  United  States  Bank  v.  Bank 
of  BaUimore,  7  GiW,  415.'' 


14  OCTOBER  TERM.  1909. 

Holmes,  J.,  concurring.  215  U.  S. 

It  may  be  doubted  if  the  cases  cited  by  the  learned  court 
sustain  its  conclusion.  But  we  will  not  stop  to  review  them  or 
to  trace  their  accordance  with  or  their  distinction  from  the 
cases  which  we  have  cited.  The  latter  certainly  accord  with  the 
weight  of  authority.  There  is,  however,  much  temptation  in 
the  facts  of  this  case  to  follow  the  ruling  of  the  Supreme  Court 
of  Ohio.  As  we  have  seen,  the  husband  of  the  plaintiff  brought 
suit  against  her  in  Washington  for  divorce,  and,  attempting  to 
avail  himself  of  the  laws  of  Washington,  prayed  also  that  the 
land  now  in  controversy  be  awarded  to  him.  She  appeared  in 
the  action,  and,  submitting  to  the  jurisdiction  which  he  had 
invoked,  made  counter-charges  and  prayers  for  relief.  She 
established  her  charges,  she  was  granted  a  divorce,  and  the 
land  decreed  to  her.  He,  then,  to  defeat  the  decree  and  in 
fraud  of  her  rights,  conveyed  the  land  to  the  defendant  in  this 
suit.  This  is  the  finding  of  the  trial  court.  It  is  not  questioned 
by  the  Supreme  Court,  but  as  the  ruling  of  the  latter  court, 
that  the  decree  in  Washington  gave  no  such  equities  as  could 
be  recognized  in  Nebraska  as  justifying  an  action  to  quiet 
title  does  not  offend  the  Constitution  of  the  United  States,  we 
are  constrained  to  aflSrm  its  judgment. 

So  ordered. 

Mr.  Justice  Harlan  and  Mr.  Justice  Brewer  dissent. 

Mr.  Justice  Holmes,  concurring  specially. 

I  am  not  prepared  to  dissent  from  the  judgment  of  the  court, 
but  my  reasons  are  different  from  those  that  have  been  stated. 

The  real  question  concerns  the  effect  of  the  Washington  de- 
cree. As  between  the  parties  to  it  that  decree  established  in 
Washington  a  personal  obligation  of  the  husband  to  convey  to 
his  former  wife.  A  personal  obligation  goes  with  the  person. 
If  the  husband  had  made  a  contract,  valid  by  the  law  of  Wash- 
ington, to  do  the  same  thing,  I  think  there  is  no  doubt  that 
the  contract  would  have  been  binding  in  Nebraska.    Ex  parte 


FALL  V.  EA8TIN.  15 

215  U.  8.  Holmes,  J.,  coneurring. 

PoUard,  4  Deacon,  27,  40;  Pohon  v.  Stewart,  167  Massachu- 
setts, 211.  So  I  conceive  that  a  Washington  decree  for  the 
specific  performance  of  such  a  contract  would  be  entitled  to  full 
faith  and  credit  as  between  the  parties  in  Nebraska.  But  it 
does  not  matter  to  its  constitutional  effect  what  the  ground 
of  the  decree  may  be,  whether  a  contract  or  something  else. 
Faunderoy  v.  I/um,  210  U.  S.  230.  (In  this  case  if  may  have 
been  that  the  wife  contributed  equally  to  the  accumulation  of 
the  property,  and  so  had  an  equitable  claim.)  A  personal  de- 
cree is  equally  within  the  jurisdiction  of  a  court  having  the  per- 
son within  its  power,  whatever  its  ground  and  whatever  it  or- 
ders the  defendant  to  do.  Therefore  I  think  that  this  decree 
was  entitled  to  full  faith  and  credit  in  Nebraska. 

But  the  Nebraska  court  carefully  avoids  saying  that  the  de- 
cree would  not  be  binding  between  the  original  parties  had  the 
husband  been  before  the  court.  The  ground  on  which  it  goes 
is  that  to  allow  the  judgment  to  affect  the  conscience  of  pur- 
chasers would  be  giving  it  an  effect  in  rem.  It  treats  the  case 
as  standing  on  the  same  footing  as  that  of  an  innocent  pur- 
chaser. Now  if  the  court  saw  fit  to  deny  the  effect  of  a  judg- 
ment upon  privies  in  title,  or  if  it  considered  the  defendant  an 
innocent  purchaser,  I  do  not  see  what  we  have  to  do  with  its 
decision,  however  wrong.  I  do  not  see  why  it  is  not  within  the 
power  of  the  State  to  do  away  with  equity  or  with  the  equitable 
doctrine  as  to  purchasers  with  notice  if  it  sees  fit.  Still  less  do 
I  see  how  a  mistake  as  to  notice  could  give  us  jurisdiction.  If 
the  judgment  binds  the  defendant  it  is  not  by  its  own  operar- 
tion,  even  with  the  Constitution  behind  it,  but  by  the  obliga- 
tion imposed  by  equity  upon  a  purchaser  with  notice.  The 
ground  of  decision  below  was  that  there  was  no  such  obligation. 
The  decision,  even  if  wrong,  did  not  deny  to  the  Washington 
decree  its  full  effect.  Bagley  v.  General  Fire  Extinguisher  Co,, 
212  U.  S.  477,  480. 


16  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.S. 


REAVIS  V.  FIANZA. 

APPEAL  FROM  THE  SUPREME  COURT  OP  THE  PHILIPPINE 

ISLANDS. 

No.  16.     Argued  April  26,  27,  1909.— Decided  November  1,  1909. 

This  court  has  jurisdiction  of  this  case ;  for,  even  if  the  requisite  amount 
is  not  involved,  the  meaning  and  effect  of  a  provision  of  the  Philip- 
pine Organic  Act  of  July  1, 1902,  c.  1369,  32  Stats.  691,  is  involved. 

The  provision  of  §  45  of  the  Organic  Act  of  the  Philippine  Islands  re- 
lating to  title  to  mines  by  prescription  refers  to  conditions  as  they 
were  before  the  United  States  came  into  power  and  had  in  view  the 
natives  of  the  islands  and  intention  to  do  them  liberal  justice. 

Courts  are  justified  in  dealing  liberally  with  natives  of  the  Philippines  in 
dealing  with  evidence  of  possession.  Cariho  v.  Insvlar  Government^ 
212  U.  S.  449. 

The  limitation  of  size  of  mining  claims  in  §  22  of  the  Philippine  Or- 
ganic Act  applies  only  to  claims  located  after  the  passage  of  that  act. 

Under  §  28  of  the  Philippine  Organic  Act  a  valid  location  could  not 
be  made  if  the  land  was  occupied  by  one  who  was  already  in  posses- 
sion before  the  United  States  came  into  power,  and  the  claim  of  one 
locating  under  those  conditions  does  not  constitute  an  adverse  claim 
under  §  45  of  that  act. 

A  right  to  an  instrument  that  will  confer  a  title  in  a  thing  is  a  right  to 
the  thing  itself,  and  a  statutory  right  to  apply  for  a  patent  to  mining 
lands  is  a  right  that  equity  will  specifically  enforce. 

Although,  if  seasonably  taken,  an  objection  to  the  form  of  remedy 
might  be  sustained,  after  trial  on  the  merits  it  comes  too  late. 

7  Philippine  Rep.  610,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr,  Frederic  R,  Coudert  and  Mr,  Howard  Thayer  Kings- 
bury, with  whom  Mr,  Paul  Fuller  was  on  the  brief,  for  appel- 
lant: 

This  court  has  jurisdiction  both  as  the  basis  of  the  amount 
involved,  and  because  the  construction  of  a  statute  of  the 


REAVIS  V.  FIANZA.  17 

215  XT.  S.  Argument  for  Appellant. 

United  States  (Act  of  July  1,  1902,  §  45;  32  U.  S.  Stat.  703) 
18  in  question.  The  facts  as  well  as  the  law  are  before  the 
court  for  review.    De  la  Rama  v.  De  la  Ranuiy  201  U.  S.  309. 

The  judgment  of  the  Court  of  First  Instance  was  plainly 
and  manifestly  against  the  weight  of  evidence.  The  Philip- 
pine Supreme  Court  should  have  decided  according  to  the  pre- 
ponderance of  the  evidence.  Act  of  Feb.  26,  1907,  No.  1596, 
Acts  of  Phil.  Com. 

Plaintiffs  had  no  title  to  the  mines  at  the  time  of  the  ces- 
sion and  have  acquired  none  since.  Both  under  Spanish  law 
and  ours,  mines  can  be  acquired  in  private  ownership  only  by 
compliance  with  governmental  regulations.  Translation  of 
Mining  Law  and  Regulations,  War  Dep't,  July,  1900;  Royal 
Decree  of  May  14,  1867;  United  States  v.  CastiOero,  2  Black, 
1,  166.  After  the  cession  the  Spanish  Mining  Laws  continued 
in  force  until  further  legislation  by  Congress.  Strother  v. 
Lucas,  12  Pet.  410,  436.  The  act  of  March  2,  1901,  31  Stat. 
910,  forbade  for  the  time  being  any  government  grant  of 
mining  rights,  and  thus  suspended  recourse  to  former  law. 
Unless  plaintiffs  have  acquired  some  rights  of  property  under 
the  act  of  July  1,  1902,  they  have  none  now,  and  are  mere 
trespassers. 

Section  45  of  the  act  of  July  1, 1902, 32  Stat.  703,  is  almost 
identical  with  §2332,  Rev.  Stat.  It  confers  no  title,  but 
merely  prescribes  what  evidence  shall  entitle  a  claimant  to  a 
patent,  upon  compliance  with  requirements  of  §  37  and  de- 
termination of  any  adverse  claim  under  §  39.  Plaintiffs  at 
most  have  only  a  right  to  apply  for  a  patent ; — a  fus  ad  rem, 
not  a  jus  in  re.  The  Young  Mechanic,  2  Curt.  404;  S.  C,  Fed. 
Gas.  No.  18,180;  The  Carlos  F.  Roses,  177  U.  S.  655,  666;  2 
Lindley  on  Mines,  §  688;  In  re  Smith  Brothers,  7  Copp's  L.  0. 4; 
Byffalo  Zinc  &  Copper  Co.  v.  Crump,  69  S.  W.  Rep.  572; 
Cleary  v.  Skiffich,  28  Colorado,  362;  McCowan  v.  Maday,  16 
Montana,  2^34. 

Rights  founded  on  possession  must  yield  to  a  "location" 
under  the  statutes.  HorsweU  v.  Ruiz,  67  Colorado,  111; 
VOL.  ccxv — 2 


18  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

Kendall  v.  San  Juan  Mining  Co.,  144  U.  S.  658.  Reavis's 
peaceable  adverse  entry  interrupted  plaintiffs'  possession  and 
prevented  them  from  acquiring  title  thereunder.  Bdk  v. 
Meagher,  104  U.  S.  279,  287.  Plaintiffs'  possession  was  in- 
sufficient under  the  Philippine  statute  of  limitations.  Phil. 
Code  of  Proc,  §41;  Hamilton  v.  South  Nev.  Gold  &  Silver 
Min.  Co.,  33  Fed.  Rep.  562.  A  "location"  can  only  be  made 
for  a  territory  not  exceeding  1,000  feet  by  1,000  feet.  32  Stat. 
697,  §  22. 

This  case  is  to  be  distinguished  from  Carino  v.  The  Insular 
Government,  212  U.  S.  449.  There  the  boundaries  were  de- 
fined; the  possession  was  definite  and  exclusive,  and  the 
lands  were  agricultural  and  hence  prescriptible  even  against 
the  Spanish  Crown.  Here  the  plaintiffs  ask  the  court  to 
declare  that  because  a  particular  family  of  Iggorrots  have 
habitually  roamed  over  a  whole  mountain-side  and  taken  out 
a  little  loose  gold,  they  have  acquired  legal  title  to  all  the 
mineral  wealth  below  the  surface  within  whatever  bound- 
aries they  now  choose  to  assert.  Such  a  ruling  would  pre- 
vent the  development  of  the  mineral  resources  of  the  Philip- 
pine Islands.  The  Iggorrots'  conceptions  of  private  property 
hardly  included  subterranean  rights.  The  appellant  asks  the 
court  to  appreciate  a  peculiar  colonial  problem  rather  than 
to  weigh  conflicting  claims  as  to  mining  boundaries. 

Plaintiffs  were  not  entitled  to  an  injimction.  Their  rights 
were  doubtful  and  disputed.  Lawson  v.  U.  S.  Mining/  Co., 
207  U.  S.  1;  GvnUim  v.  DoneUan,  115  U.  S.  45;  Tacoma  Ry. 
&  Power  Co.  v.  Pacific  Traction  Co.,  155  Fed.  Rep.  259.  They 
were  out  of  possession  when  suit  was  brought.  Lacassagne 
V.  Chajmis,  144  U.  S.  119;  Whithead  v.  ShaUuck,  138  U.  S.  146. 
They  should  have  sued  at  law  to  recover  possession.  Ba^o 
V.  Garcia,  5  Phil.  Rep.  524;  Bishop  of  Cebu  v.  Mangaran,  6 
Phil.  Rep.  286;  Barlin  v.  Ramirez,  7  Phil.  Rep.  41;  Black  v. 
Jackson,  177  U.  S.  349;  Potts  v.  Hollen,  177  U.  S.  365. 

The  judgment  of  the  trial  court  should  have  been  reversed 
for  errors  in  the  exclusion  of  material  evidence.    There  is  a 


REAVIS  r.  FIANZA.  19 

215  U.  S.  Argument  for  Appellees. 

presumption  of  harm  from  such  exclusion.  Buckstaff  v.  Rils- 
sc«,  151  U.  S.  626,  637;  Crawford  v.  United  States,  212  U.  S. 
183,  203. 

Mr.  Henry  E.  Davis  for  appellees : 

There  is  no  force  in  the  contention  that  plaintiffs  had  no 
title  to  the  mines  in  controversy  at  the  time  of  the  cession  of 
the  PhiUppine  Islands  and  have  not  since  acquired  any.  The 
case  comes  imder  the  temporary  government  act,  especially 
§45  thereof,  32  Stat.  691,  703,  which  mutaiis  mutandis  is, 
with  very  slight  changes,  identical  with  §  2332,  Rev.  Stat., 
taken  from  the  act  of  May  10,  1872, 17  Stat.  91.  The  scheme 
of  these  acts  was  clearly  to  recognize  in  the  inhabitants  of 
territory  newly  acquired  by  the  United  States,  rights  equiva- 
lent to  those  of  location  and  possession,  anH  of  themselves 
conferring  a  right  to  a  patent  for  mining  lands,  independently 
of  compliance  with  requirements  of  laws  of  the  former  sover- 
eignty and  local  laws  and  customs  inherited  therefrom,  or 
enacted  or  adopted  in  analogy  to  the  institutions  thereof. 

Rev.  Stat.,  §2332,  provides  an  additional  mode  of  acquisi- 
tion of  mineral  land  from  the  Government,  and,  where  pos- 
session has  continued  for  the  prescribed  period  before  an 
adverse  right  exists,  it  is  equivalent  to  a  location  under  the 
laws  of  Congress.  Anthony  v.  JiUsony  83  California,  296,  302; 
Altoona  &c.  Co.  v.  Integral  &c.  Co.,  114  California,  100,  105; 
Min.  Co.  V.  Bidlion  Min.  Co.,  3  Saw.  634,  657,  658;  Harris  v. 
Equalor  &c.  Co.,  8  Fed.  Rep.  863;  Belk  v.  Meagher,  104  U.  S. 
279,  287;  Lavignino  v.  Uhlig,  26  Utah,  125. 

Upon  completion  of  a  location  and  until  patent  issues,  the 
Government  holds  the  title  in  trust  for  the  locator;  and  a 
title  so  acquired  will  be  quieted  on  a  bill  in  equity  even  against 
the  holder  of  a  correct  paper  title.  Noyes  v.  Mantle,  127  U.  S. 
348,  351 ;  Min.  Co.  v.  Bullion  Min.  Co.,  vbi  supra. 

In  dealing  with  the  Philippines,  the  United  States  meant 
to  treat  its  inhabitants  as  it  had  treated  those  of  our  former 
Mexican  territory,  and,  indeed,  to  put  the  former  on  an  even 


20  OCTOBER  TERM,  1909. 

Argument  for  Appellees.  215  U.  8. 

more  favored  footing.  Carino  v.  Insvlar  Government,  212 
U.  S.  449. 

Accordingly,  it  is  beside  the  question  whether  plaintiffs  have 
or  have  not  acquired  any  title  to  the  mines  in  controversy 
since  our  acquisition  of  the  Philippines,  the  facts  being  that 
it  is  not  contended  that  plaintiffs  ever  undertook  to  acquire 
formal  title  to  the  mines  dming  the  Spanish  occupation;  that, 
almost  immediately  upon  our  occupation,  they  were  prohibited 
by  law  from  acquiring  such  title ;  that  they  were  on  their  way 
to  the  acquisition  of  such  when  they  encountered  interference 
by  the  action  of  the  defendant ;  and  that  the  object  of  this 
case  was  and  is  to  free  themselves  from  such  interference. 

Plaintiffs  have  not  mistaken  their  forum,  they  have  a 
right  to  the  remedy  sought  in  this  action. 

Section  39  of  the  act  of  July  1,  1902,  32  Stats.  701,  is  mv^ 
talis  mutandis,  an  exact  reproduction  of  §  2326,  Rev.  Stat., 
as  amended  by  act  of  1881,  with  the  difference  that  the  ques- 
tion of  title  is  provided  to  be  determined  by  judgment  of  the 
court  instead  of  by  verdict  of  a  jury.  Plaintiffs,  instead  of 
going  through  the  form  of  applying  for  a  patent  upon  the 
ground  of  compliance  with  §45. of  the  act  of  July  1,  1902, 
elected  directly  to  institute  proceedings  in  equity.  The  pro- 
priety of  this  proceeding  might  have  been  raised  by  demurrer 
or  apt  objection  in  the  answer,  but  defendant,  having  an- 
swered without  objection  of  any  kind  to  the  proceeding  or  the 
jurisdiction  of  the  court,  and  having  converted  his  answer 
into  a  petition  or  cross-bill  for  affirmative  defense,  closed  the 
door  upon  any  question  as  to  the  propriety  of  the  proceeding 
itself  or  the  jurisdiction  to  determine  the  same  of  the  tribunal 
in  which  it  was  instituted.  16  Cyc.  Law,  117,  129,  131,  and 
cases  cited. 

Any  objection  to  the  jurisdiction  or  proceeding  comes  too 
late  in  the  appellate  tribunal.  Perego  v.  Dodge,  163  U.  S. 
160,  164,  10(),  168. 

The  character  and  extent  of  plaintiff's  possession  are  unim- 
portant, it  being  plain  that  the  acts  of  mining  on  the  part  of 


REAVIS  V.  FIANZA.  21 

215  U.  8.  Opinion  of  the  Court. 

the  plaintiffs  were  as  continuous  as  the  natuire  of  the  business 
and  the  customs  of  the  country  permitted,  and  such  as  to  per- 
mit them  to  do  acts  of  mining  of  which  the  methods,  although 
crude,  were  yet  such  as  were  practiced  and  customary  among 
their  people,  "and  produced  gold."  Stephenson  v.  Wilsorij 
37  Wisconsin,  482;  2  Lind.  on  Mmes,  §  688. 

The  description  of  the  premises  in  controversy,  being  by 
name  of  a  property  well  known,  is  sufficient.  Glazier  Mining 
Co.  V.  WiUis,  127  U.  S.  471,  480. 

And  the  limitation  of  §  22  of  the  act  of  July  1,  1902,  has 
application  only  to  claims  located  after  the  passage  of  the  act. 

The  alleged  exclusion  of  competent  and  material  evidence 
cannot  be  considered,  as  the  same  is  not  to  be  found  in  the 
reasons  assigned  for  the  motion  for  a  new  trial,  nor  in  the  bill 
of  exceptions,  so-called,  nor  in  the  assignments  of  error. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  brought  by  the  appellees  to  restrain 
the  appellant  from  setting  up  title  to  certain  gold  mines  in 
the  Province  of  Benguet,  or  interfering  with  the  same,  and 
to  obtain  an  account  of  the  gold  heretofore  taken  from  the 
mines.  The  trial  court  rendered  a  judgment  or  decree  grant- 
ing an  injunction  as  prayed.  Exceptions  were  taken  on  the 
grounds  that  the  findings  of  fact  were  against  the  weight  of 
evidence  and  that  the  judgment  was  against  the  law.  The 
Supreme  Court  reexamined  the  evidence  and  affirmed  the 
decree  below.    Then  the  case  was  brought  here  by  appeal. 

The  appellees  make  a  preliminary  argument  against  the 
jurisdiction  of  this  court,  while  the  appellant  asks  us  to  reex- 
amine the  evidence  and  to  reverse  the  decree  on  the  facts  as 
well  as  the  law.  We  cannot  accede  to  either  of  these  conten- 
tions. We  are  of  opinion  that  this  court  has  jurisdiction.  For 
if  the  affidavits  of  value  should  be  held  to  apply  to  the  whole 
of  Reavis's  claims  and  not  to  only  that  part  of  them  that  are 
in  controversy  here,  still  a  statute  of  the  United  States, 


22  OCTOBER  TERM,  1909. 

OiHmon  of  the  Court.  215  U.  S. 

munely,  a  section  of  the  organic  act  (§  45,  concerning  min- 
ing titles  in  the  Philippines),  is  "involved,"  within  the  meaning 
of  §  10  of  the  same  act,  which  detennines  the  jurisdiction  of 
this  court.  Act  of  July  1,  1902,  c.  1309,  32  Stats.  091.  The 
meaning  and  effect  of  that  section  are  in  question,  and  our 
construction  even  has  some  bearing  upon  our  opinion  that 
the  findings  of  the  two  courts  below  should  not  be  reopened. 
For  apart  from  the  general  rule  prevailing  in  such  cases,  De 
la  Rama  v.  De  la  Rama,  201  U.  S.  303,  309,  we  shall  refer  to 
the  law  for  special  reasons  why  those  findings  should  not  be 
disturbed  in  a  case  like  this. 

The  appellees  are  Iggorrots,  and  it  is  found  that  for  fifty 
years,  and  probably  for  many  more,  Fianza  and  his  ancestors 
have  held  possession  of  these  mines.  He  now  claims  title 
under  the  Philippine  Act  of  July  1,  1902,  c.  1369,  §  45,  32 
Stat.  691.    This  section  reads  as  follows: 

"That  where  such  person  or  association,  they  and  their 
grantors  have  held  and  worked  their  claims  for  a  period  equal 
to  the  time  prescribed  by  the  statute  of  limitations  of  the 
Philippine  Islands,  evidence  of  such  possession  and  working  of 
the  claims  for  such  period  shall  be  sufficient  to  establish  a 
right  to  a  patent  thereto  under  this  Act,  in  the  absence  of  any 
adverse  claim ;  but  nothing  in  this  Act  shall  be  deemed  to  im- 
pair any  lien  which  may  have  attached  in  any  way  whatever 
prior  to  the  issuance  of  a  patent." 

It  is  not  disputed  that  this  section  applies  to  possession 
maintained  for  a  sufficient  time  before  and  until  the  statute 
went  into  effect.  See  Soper  v.  Lawrence  Brothers  Co.,  201  U.  S. 
359.  The  period  of  prescription  at  that  time  was  ten  years. 
Code  of  Procedure  in  Civil  Actions,  August  7,  1901,  No.  190, 
§  40;  1  Pub.  Laws  of  Phil.  Comm.  378,  384.  Therefore,  as  the 
United  States  had  not  had  the  sovereignty  of  the  Philippines 
for  ten  years,  the  section,  notwithstanding  its  similarity  to 
Rev.  Stats.,  §  2332,  must  be  taken  to  refer  to  the  conditions  as 
they  were  before  the  United  States  had  come  into  power.  Es- 
pecially must  it  be  supposed  to  have  had  in  view  the  natives  of 


REAVIS  r.  FIANZA.  23 

215  17.  S.  Opinion  of  the  Court. 

the  islands,  and  to  have  intended  to  do  liberal  justice  to  them. 
By  §  16  their  occupancy  of  public  lands  is  respected  and  made 
to  confer  rights.  In  dealing  with  an  Iggorrot  of  the  Province 
of  Benguet  it  would  be  absurd  to  expect  technical  niceties,  and 
the  courts  below  were  quite  justified  in  their  liberal  mode  of 
dealing  with  the  evidence  of  possession  and  the  possibly  rather 
gradual  settling  of  the  precise  boundaries  of  the  appellees' 
claim.  See  Carino  v.  Insular  Gavemmentf  212  U.  S.  449.  At 
all  events,  they  foimd  that  the  appellees  and  their  ancestors 
had  held  the  claim  and  worked  it  to  the  exclusion  of  all  others 
down  to  the  bringing  of  this  suit,  and  that  the  boundaries  were 
as  shown  in  a  plan  that  was  filed  and  seems  to  have  been  put  in 
evidence  before  the  trial  came  to  an  end. 

It  cannot  be  said  that  there  was  no  evidence  of  the  facts 
foimd,  for  the  plaintiff  Fianza  testified,  in  terms,  that  his 
grandfather  and  father  had  owned  the  mines  in  question,  and 
that  he  and  the  other  appellees  owned  them  in  their  turn,  that 
they  had  all  worked  the  mines,  that  no  one  else  had  claimed 
them,  and  that  the  appellant  had  interfered  with  his  possession, 
and  when  he  put  up  a  sign  had  torn  it  down.  No  doubt  his 
working  of  the  mines  was  slight  and  superficial  according  to  our 
notions,  and  the  possession  may  not  have  been  sharply  asserted 
88  it  would  have  been  with  us,  whether  from  Iggorrot  habits 
or  from  the  absence  of  legal  title  under  Spanish  law.  But  it 
suflBciently  appears  that  the  appellees'  family  had  held  the 
place  in  Iggorrot  fashion,  and  to  deny  them  possession  in  favor 
of  Western  intruders  probably  would  be  to  say  that  the  natives 
had  no  rights  under  the  section  that  an  American  was  bound 
to  respect.  Whatever  vagueness  there  may  have  been  in  the 
boimdaries,  it  is  plain  that  the  appellant  attempted  to  locate  a 
claim  within  them,  and  Fianza  testified  that  the  plan  to  which 
we  have  referred  followed  the  boundaries  that  his  father  showed 
to  him.  It  is  said  that  the  claim  is  larger  than  is  allowed  by 
§  22.  But  the  limitation  of  that  section  applies  only  to  claims 
"  located  after  the  passage  of  this  act. " 

It  is  to  be  assumed  then  that  the  appellees  and  their  ances- 


24  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

tors  had  held  poesession  and  had  worked  their  claims  for  much 
more  than  the  period  required  by  §45,  before  the  moment 
when  the  statute  went  into  efifect.  It  is  to  be  assumed  that  the 
possession  and  working  continued  down  to  within  two  months 
of  that  moment.  But  the  appellant  says  that  he  entered  and 
staked  his  claims  before  that  time  and  then  was  in  possession 
of  them.  On  this  ground,  as  well  as  others  that  are  disposed 
of  by  the  findings  below,  he  contends  that  there  was  an  ad- 
verse claim  within  the  meaning  of  the  act.  But  the  ground  in 
question  was  not  unoccupied  and  therefore  he  could  not  make 
a  valid  claim  imder  §  28.  See  also  act  of  March  2, 1901,  c.  803, 
31  Stats.  895,  910.  He  refiled  a  location  in  October,  1902,  but 
he  did  not  and  could  not  make  the  reqidred  affidavit  because 
of  the  prior  occupation,  and  at  that  date  Fianza  was  within 
the  act,  unless  he  already  had  been  deprived  of  its  benefits. 
Moreover,  it  is  foimd  that  Fianza's  possession  continued  down 
to  the  bringing  of  this  sidt.  This  is  justified  by  the  evidence 
and  is  not  contradicted  by  the  bill.  The  bill,  to  be  sure,  alleges 
that  Reavis  in  1900  illegally  entered  and  deprived  the  appellees 
of  their  mines  and  that  he  still  continues  to  maintain  his  un- 
just claim.  But  further  on  it  alleges  that  in  the  spring  of  1902 
Reavis  was  directed  by  the  Governor  of  Benguet  not  to  molest 
the  appellees;  that  he  then  waited  in  Manila,  and  after  the 
promulgation  of  the  law  ''again  entered,"  set  stakes  and  filed 
a  notice  of  location.  So  that  the  bill  does  not  mean  that  he 
was  continuously  in  possession  or  that  he  was  in  possession 
when  the  law  took  effect.  We  are  of  opinion  that  there  was  no 
adverse  claim  that  would  have  prevented  the  appellees  from 
getting  a  patent  imder  §  45.  See  Bdk  v.  Meagher,  104  U.  S.  279, 
284.  AUoona  Quicksilver  Mining  Co.  v.  Integral  Quicksilver 
Mining  Co.,  114  California,  100,  105.  See  also  McCowan  v. 
Maclay,  16  Montana,  234,  239,  240. 

It  is  suggested  that  the  possession  of  Fianza  was  not  under 
a  claim  of  title,  since  he  could  have  no  title  under  Spanish  law. 
But  whatever  may  be  the  construction  of  Rev.  Stats.,  §  2332, 
the  corresponding  §  45  of  the  Philippine  Act  cannot  be  taken 


REAVIS  I?.  FIANZA.  26 

215  n.  8.  Opinion  of  the  Court. 

to  adopt  from  the  local  law  any  other  requirement  as  to  the 
possession  than  the  length  of  time  for  which  it  must  be  main- 
tained. Otherwise,  in  view  of  the  Spanish  and  American  law 
before  July  1, 1902,  no  rights  could  be  acquired  and  the  section 
would  be  empty  words,  whereas,  as  we  have  said  before,  an- 
other section  of  the  act,  §  16,  still  further  shows  the  intention 
of  Congress  to  respect  native  occupation  of  public  lands. 

Again  it  is  urged  that  the  section  of  itself  confers  no  right 
other  than  to  apply  for  a  patent.  But  a  right  to  an  instrument 
that  will  confer  a  title  in  a  thing  is  a  right  to  have  the  thing. 
That  is  to  say,  it  is  a  right  of  the  kind  that  equity  specifically 
enforces.  It  may  or  may  not  be  true  that  if  the  objection  had 
been  taken  at  the  outset  the  plaintiffs  would  have  been  turned 
over  to  another  remedy  and  left  to  apply  for  a  patent,  but  after 
a  trial  on  the  merits  the  objection  comes  too  late.  See  Perego 
V.  Dodgcy  163  U.  S.  160, 164;  Reynes  v.  Dumont,  130  U.  S.  354, 
395. 

Some  objections  were  taken  to  the  exclusion  of  evidence. 
But  apart  from  the  fact  that  they  do  not  appear  to  have  been 
saved  in  the  exceptions  taken  to  the  Supreme  Court,  and  ir- 
respective of  its  admissibility,  the  evidence  offered  could  not 
have  affected  the  result.  An  inquiry  of  Fianza,  whether  he 
claimed  the  mines  mentioned  in  the  suit  or  those  measured  by 
the  surveyor  who  made  the  plan  to  which  we  have  referred,  was 
met  by  the  allowance  of  an  amendment  claiming  according  to 
the  plan.  A  question  to  another  of  the  plaintiffs,  whether  she 
saw  any  Iggorrots  working  for  Reavis,  would  have  brought  out 
nothing  not  admitted  by  the  bill,  that  Reavis  did  for  a  time 
intrude  upon  the  mines  in  suit.  Upon  the  whole  case  we  are  of 
opinion  that  no  sufficient  ground  is  shown  for  reversing  the 
decree,  and  it  is  affirmed. 

Decree  affirmed. 


26  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 


UNITED  STATES  v,  MESCALL. 

ERROR  TO  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR  THE 

EASTERN   DISTRICT  OF  NEW   YORK. 

No.  278.    Argued  October  14,  1909.— Decided  November  8,  1909. 

The  rule  of  ejusdem  generis j  that  where  the  particular  words  of  descrip- 
tion are  followed  by  general  terms  the  latter  will  be  regarded  as  re- 
ferring to  things  of  a  like  class  with  those  particularly  described,  is 
only  a  rule  of  construction  to  aid  in  arriving  at  the  real  legislative 
intent  and  does  not  override  all  other  rules.  When  the  particular 
words  exhaust  the  genus  the  general  words  must  refer  to  words  out- 
side of  those  particularized. 

Under  §  9  of  the  Customs  Administrative  Act  of  June  10,  1890,  c.  407, 
26  Stat.  131,  135,  providing  punishment  for  making  and  aiding  in 
false  entries,  the  words  "owner,  importer,  consignee,  agent  or  other 
person"  include  a  weigher  representing  the  Government,  and  his 
acts  come  within  the  letter  and  purpose  of  the  statute. 

Section  9,  chapter  407,  Laws  of  June  10,  1890,  26  Stat. 
130-135,  known  as  the  Customs  Administrative  Act,  under 
which  defendant  was  indicted,  reads  as  follows : 

"That  if  any  owner,  importer,  consignee,  agent,  or  other 
person  shall  make  or  attempt  to  make  any  entry  of  imported 
merchandise  by  means  of  any  fraudulent  or  false  invoice, 
affidavit,  letter,  paper,  or  by  means  of  any  false  statement, 
written  or  verbal,  or  by  means  of  any  false  or  fraudulent 
practice  or  appliance  whatsoever,  or  shall  be  guilty  of  any 
wilful  act  or  omission  by  means  whereof  the  United  States 
shall  be  deprived  of  the  lawful  duties,  or  any  portion  thereof, 
accruing  upon  the  merchandise,  or  any  portion  thereof,  em- 
braced or  referred  to  in  such  invoice,  affidavit,  letter,  paper, 
or  statement,  or  affected  by  such  act  or  omission,  such  mer- 
chandise, or  the  value  thereof,  to  be  recovered  from  the  per- 
son making  the  entry,  shall  be  forfeited,  which  forfeiture 


UNITED  STATES  v,  MESCALL.  27 

215  U.  S.  Statement  of  the  Case. 

shall  only  apply  to  the  whole  of  the  merchandise  or  the  value 
thereof  in  the  case  or  package  containing  the  particular  arti- 
cle or  articles  of  merchandise  to  which  such  fraud  or  false 
paper  or  statement  relates ;  and  such  person  shall,  upon  con- 
viction, be  fined  for  each  ofifense  a  sum  not  exceeding  five 
thousand  dollars,  or  be  imprisoned  for  a  time  not  exceeding 
two  years,  or  both,  in  the  discretion  of  the  court." 

The  indictment  in  the  first  count  alleges  that  the  steam- 
ship Alice  arrived  at  the  port  of  New  York  on  November  2, 
1907,  from  Greece,  having  on  board  eighty  cases  of  cheese, 
consigned  to  one  Stamatopoulos;  that  the  said  cheese  was  un- 
loaded and  an  invoice  and  entry  thereof  filed  with  the  collector 
of  customs  of  the  port  of  New  York  by  the  said  Stamato- 
poulos; that  the  defendant  was  at  the  time  an  assistant 
weigher  of  the  United  States  in  the  customs  service  at  the 
port  of  New  York  and  engaged  in  the  performance  of  his  du- 
ties as  such  assistant  weigher;  that  it  was  his  duty  to  weigh 
accurately  the  said  cheese  and  make  return  thereof  to  the 
collector  of  customs,  and  upon  the  weight  so  returned  the 
said  entry  was  to  be  liquidated;  that  the  said  defendant  "did 
knowingly,  wilfully  and  unlawfully  make  and  attempt  to 
make  an  entry  of  imported  merchandise,  to  wit,  the  said 
eighty  cases  of  cheese,  by  means  of  a  false  and  fraudulent 
practice,  by  means  whereof  the  United  States  was  to  be  de- 
prived of  the  lawful  duties  or  a  portion  thereof  accruing  upon 
the  said  merchandise;"  that  he  did  knowingly,  wilfully  and 
imlawfully  return  the  net  weight  of  said  cheese  as  13,358 
pounds,  whereas  the  true  weight  thereof  and  the  weight  upon 
which  the  entry  should  have  been  liquidated  and  the  duties 
paid  was  17,577  pounds.  The  second  and  third  counts  con- 
tain the  same  statement  of  facts,  but  it  is  averred  in  the  one 
that  the  defendant  was  "guilty  of  a  wilful  act  and  omission, 
by  means  whereof  the  United  States  was  to  be  deprived  of 
the  lawful  duties, "  or  a  portion  thereof,  and  in  the  other  that 
he  imlawfully  made  and  attempted  to  make  the  entry  "by 
means  of  a  false  written  statement."    To  this  indictment  a 


28  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  216  U.  S. 

demurrer  was  filed  and  sustained,  the  court,  after  discussing 
several  matters,  saying: 

*'  But  it  is  apparent  from  the  allegations  of  the  indictment 
that  the  defendant  is  not  in  fact  any  of  the  persons  within  the 
contemplation  of  section  9  with  relation  to  these  particular 
importations,  and  cannot  be  considered  either  an  owner,  im- 
porter, consignee,  agent  or  other  person. 

''The  defendant  Mescall  was  not  making  or  attempting  to 
make  an  entry  of  these  goods.  According  to  the  charge  he 
was,  contrary  to  his  duty,  rendering  assistance  to  the  importer, 
who  was  the  'person'  making  the  entry." 

The  case  is  here  under  the  act  of  March  2,  1907,  34  Stat. 
1246,  which  authorizes  a  writ  of  error  "direct  to  the  Su- 
preme Court  of  the  United  States"  in  a  criminal  case  wherein 
there  has  been  a  decision  or  judgment  sustaining  a  demurrer 
to  an  indictment,  when  such  decision  or  judgment  is  based 
upon  the  invalidity  or  construction  of  a  statute  upon  which 
the  indictment  is  foimded. 

Mr.  Assistard  Attorney  General  Fowler  for  the  United  States : 
An  entry  of  goods  within  the  meaning  of  §  9  of  the  act  of 
July  24,  1897,  embraces  the  entire  transaction  from  the  time 
the  vessel  enters  port  until  the  importer  obtains  an  entrance 
of  the  goods  into  the  body  of  merchandise  in  the  United 
States;  United  States  v.  Baker,  24  Fed.  Cas.  953;  United  States 
V.  Cargo  of  Sugar,  25  Fed.  Gas.  288;  United  States  v.  Legge, 
105  Fed.  Rep.  930;  and  every  person  performing  any  ma- 
terial act  in  accomplishing  that  purpose  and  violating  the 
statute  in  any  particular  is  liable  to  prosecution  therefor. 

One  who  is  not  an  importer  is  not  excluded  from  prosecu- 
tion because  under  the  rule  of  ejusdem  generis  the  words 
"other  person"  exclude  those  not  of  the  class  of  importer. 
2  Lewis*  Suth.  Stat.  Const.,  2d  ed.,  p.  833;  26  Cyc.  610;  State 
V.  Corkins,  123  Missouri,  56,  67;  Bank  v.  Ripley,  161  Missouri, 
126,  131 ;  WiUis  v.  Mabon,  48  Minnesota,  140,  156;  WirUers  v. 
DuLuth,  82  Minnesota,  127;  Foster  v.  BUmrd,  18  Alabama,  687; 


UNITED  STATES  v.  MESCALL.  29 

215  TT.  S.  Argument  for  Defendant  in  Error. 

• 

Misck  V.  RusseUj  136  Illinois,  22,  25;  Wdlber  v.  Chicago,  148 
Illinois,  313;  MaxweU  v.  People,  158  Illinois,  248,  253;  Gil- 
lock  V.  People,  171  Illinois,  307;  Matthews  v.  Kimball,  7p 
Arkansas,  451,  463;  5to^  v.  Woodman,  26  Montana,  348,  353; 
Randolph  v.  Stote,  9  Texas,  521 ;  State  v.  Solomon,  33  Indiana, 
450;  Matter  o/  La  Socim  Francaise,  123  California,  525,  530; 
State  V.  HolTmn,  3  McCord  (So^  Car.),  306;  State  v.  WiUiaws, 
2  Strob.  (So.  Car.)  427;  TisdeZZ  v.  Combe,  7  A.  &  E.  788,  792, 
796;  Young  v.  Grattridge,  4  Q.  B.  Cases,  166;  /Zeg.  v.  Dovbh- 
day,  3  E.  &  E.  500. 

Mr.  George  F.  Hickey  for  defendant  in  error: 

Section  9  of  the  Customs  Administrative  Act  is  a  penal 
statute  and  should  be  construed  strictly.  United  States  v. 
Seventy-five  Bales  of  Tobacco,  147  Fed.  Rep.  127;  Andrews  v. 
United  States,  2  Story,  202;  United  States  v.  Wiliberger,  5 
Wheat.  76;  United  States  v.  Eighty-four  Boxes  of  Sugar,  7 
Pet.  453;  Sutherland  on  Stat.  Const.,  §  353. 

In  expounding  a  penal  statute  the  court  will  not  extend  it 
beyond  the  plain  meaning  of  its  words.  United  States  v. 
Morris,  14  Pet.  464. 

Such  a  statute  should  be  construed  according  to  the  mani- 
fest import  of  the  words. 

If  the  statute  is  ambiguous,  the  construction  adopted 
should  be  that  most  favorable  to  the  accused.  The  Schooner 
Enterprise,  1  Paine,  32. 

Under  §  9  indictments  may  not  be  brought  against  others 
than  owners,  importers,  consignees,  agents  or  other  persons 
of  the  same  class. 

The  entry  contemplated  undoubtedly  is  the  entry  origi- 
nally made  by  the  importer,  or  some  one  on  his  behalf,  as 
required  by  the  rules  and  regulations  of  the  customs  service. 
Thi^  was  the  entry  alluded  to  in  the  act  of  June  22,  1874,  §  21, 
18  Stat.  190,  and  it  was  the  entry  provided  for,  regulated  and 
defined  by  §§  2785-2790,  Rev.  Stat.  United  States  v.  Seiden- 
berg,  17  Fed.  Rep.  227. 


30  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

No  one  but  the  importer  or  some  one  representing  him, 
has  a  right  to  enter  goods  at  the  custom  house.  Harris  v. 
Dmnie,  3  Pet.  292;  United  States  v.  One  SUk  Rug,  158  Fed. 
Rep.  974;  United  States  v.  Ninety-nine  Diamonds,  132  Fed. 
Rep.  579;  139  Fed.  Rep.  961. 

It  seems  to  us  that  the  principal  dispute  that  can  arise  in 
the  case  at  bar  is  as  to  the  meaning  of  the  words  "or  other 
person." 

The  decision  in  the  case  that  the  words  "or  other  per- 
son" mean  some  one  of  the  same  general  class  as  those  de- 
scribed by  the  preceding  words,  seems  to  be  correct.  It  is 
certainly  supported  by  the  great  weight  of  authorities. 
United  States  v.  l,lSOi  Pounds  of  Celluloid,  82  Fed.  Rep. 
627. 

The  words  "or  other  person"  cannot  be  construed  to  mean 
"or  other  person  whosoever." 

For  cases  in  support  of  this  rule  of  construction,  known  as 
Lord  Tenderden's  Rule,  see  21  American  &  Eng.  Ency.  of 
Law,  title  "Other,"  1012;  In  re  Davidson,  4  Fed.  Rep.  509; 
Crystal  Spring  D,  Co,  v.  Cox,  49  Fed.  Rep.  555;  Newport  News 
Co.  V.  United  States,  61  Fed.  Rep.  488;  Crowther  v.  Fidelity 
Ins.  Co.,  85  Fed.  Rep.  41;  Alabama  v.  Montague,  117  U.  S. 
602;  /Stote  V.  McGarry,  21  Wisconsin,  502.  Sedgwick  on  Const, 
of  Stat.  361,  states  the  rule  as  follows : 

"  Where  general  words  follow  particular  words,  the  rule  is 
to  construe  the  former  as  applicable  to  the  persons  or  things 
particularly  mentioned." 

The  rule  that  general  words  will  be  restrained  to  things  of 
the  same  kind  with  those  particularized,  has  been  applied  in 
numerous  cases.  East  Oakland  v.  Skinner,  94  U.  S.  255; 
White  V.  Ivey,  34  Georgia,  186;  Mclntyre  v.  Ingraham,  35 
Mississippi,  25;  Bucher  v.  Commonwealth,  103  Pa.  St.  528; 
Matter  of  Hermance,  71  N.  Y.  481;  Renick  v.  Boyd,  99  Pa.  St. 
555;  People  v.  N.  Y.  R.  Co.,  84  N.  Y.  565;  Sullivan's  Appeal, 
77  Pa.  St.  107;  People  v.  Richards,  108  N.  Y.  137;  Sutheriand 
on  Stat.  Const.,  §§  268,  277. 


UNITED  STATES  v.  MESCALL.  31 

215  U.  S.  Opinion  of  the  Court. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

It  appears  that  the  trial  court  sustained  the  demurrer  on 
the  ground  that,  as  to  the  offense  charged,  the  statute,  prop- 
erly construed,  does  not  include  the  defendant.  The  case 
is,  therefore,  one  which  may  be  brought  to  this  court.  United 
States  V.  KeiteL,  211  U.  S.  370.  But  our  inquiry  is  limited  to 
the  particular  question  decided  by  the  court  below,    /d.  398. 

Counsel  for  defendant  invokes  what  is  sometimes  known 
as  Lord  Tenderden's  Rule,  that  where  particular  words  of 
description  are  followed  by  general  terms  the  latter  will  be 
regarded  as  referring  to  things  of  a  like  class  with  those  par- 
ticularly described — ejusdem  generis.  The  particular  words 
of  description,  it  is  urged,  are  "owner,  importer,  consignee, 
agent."  The  general  term  is  "other  person,''  and  should  be 
read  as  referring  to  some  one  similar  to  those  named,  whereas 
the  defendant  was  not  owner,  importer,  consignee,  or  agent 
or  of  like  class  with  either.  He  was  not  making  or  attempt- 
ing to  make  an  entry.  He  represented  the  Government,  and, 
contrary  to  his  duties,  was  rendering  assistance  to  the  con- 
signee who  was  making  the  entry.  But,  as  said  in  National 
Bank  of  Commerce  v.  Ripley ^  161  Missouri,  126,  132,  in  refer- 
ence to  the  rule: 

"But  this  is  only  a  rule  of  construction  to  aid  us  in  ar- 
riving at  the  real  legislative  intent.  It  is  not  a  cast-iron  rule, 
it  does  not  override  all  other  rules  of  construction,  and  it 
is  never  applied  to  defeat  the  real  purpose  of  the  statute, 
as  that  purpose  may  be  gathered  from  the  whole  instru- 
ment. .  .  .  Whilst  it  is  aimed  to  preserve  a  meaning  for  the 
particular  words,  it  is  not  intended  to  render  meaningless 
the  general  words.  Therefore,  where  the  particular  words 
exhaust  the  class,  the  general  words  must  be  construed  as 
embracing  something  outside  of  that  class.  If  the  particular 
words  exhaust  the  germs  there  is  nothing  ejusdem  generis  left, 
and  in  such  case  we  must  give  the  general  words  a  meaning 


32  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

outside  of  the  class  indicated  by  the  particular  words  or  we 
must  say  that  they  are  meaningless,  and  thereby  sacrifice 
the  general  to  preserve  the  particular  words.  In  that  case 
the  rule  would  defeat  its  own  purpose." 

See  also  GKUcock  v.  The  People,  171  Illinois,  307,  and  the 
cases  cited  in  the  opinion;  Winters  v.  Dvluth,  82  Minnesota, 
127;  Matthews  v.  KimbaU,  70  Arkansas,  451,  462.  Now  the 
party  who  makes  an  entry,  using  the  term  "entry"  in  its 
narrower  sense,  is  the  owner,  importer,  consignee  or  agent, 
and  it  must  be  used  in  that  sense  to  give  any  force  to  the 
argument  of  counsel  for  defendant,  but  used  in  that  sense  the 
term  "other  person"  becomes  surplusage.  In  §  1  of  chap.  76, 
Laws  of  1863,  12  Stat.  738,  is  found  a  provision  of  like  char- 
acter to  that  in  the  first  part  of  the  section  under  which  this 
indictment  was  found,  but  the  language  of  the  description 
there  is  "owner,  consignee  or  agent."  This  was  changed  by 
§  12,  chap.  391,  Laws  1874,  18  Stat.  188,  to  read  "owner,  im- 
porter, consignee,  agent,  or  other  person,"  and  that  descrip- 
tion has  been  continued  in  subsequent  legislation.  Evidently 
the  addition  in  1874  of  the  phrase  "  other  person  "  was  intended 
to  include  persons  having  a  different  relation  to  the  importa- 
tion than  the  owner,  importer,  consignee  or  agent.  Congress 
was  broadening  the  scope  of  the  legislation  and  meaning  to 
reach  other  persons  having  something  to  do  in  respect  to  the 
entry  beyond  that  which  was  done  by  the  owner,  importer, 
consignee  or  agent,  or  else  the  term  "other  person"  was  a 
meaningless  addition.  Now  the  defendant  was  a  person, 
other  than  the  owner,  importer,  consignee  or  agent,  by  whose 
act  the  United  States  was  deprived  of  a  portion  of  its  lawful 
duties.  His  act  comes  within  the  letter  of  the  statute  as  well 
as  within  its  purpose,  and  the  intent  of  Congress  in  the  leg- 
islation is  the  ultimate  matter  to  be  determined. 

The  fact  that  he  could  not  be  punished  in  all  respects  as 
fully  as  the  owner,  in  that  he  had  no  goods  to  be  forfeited,  is 
immaterial.  United  States  v.  Union  Supply  Company,  de- 
cided this  day,  post,  p.  50. 


WATERMAN  v,  CANAl^LOUISIANA  BANK  CO.     33 
215  U.  S.  Syllabus. 

We  are  of  opinion,  therefore,  that  the  trial  court  erred  in 
sustaining  the  demurrer.  The  judgment  is  reversed  and  the 
case  remanded  for  further  proceedings. 


••» 


WATERMAN  v,  THE  CANAI^LOUISIANA  BANK  AND 

TRUST  COMPANY,  EXECUTOR. 

APPEAL  FROM  THE  CIRCUIT  COURT   OF  THE   UNITED  STATES 
FOR  THE   EASTERN   DISTRICT  OF  LOUISIANA. 

No.  306.    Submitted  February  26,  1909.— Decided  November  8,  1909. 

The  equity  jurisdiction  of  the  Federal  courts  is  derived  from  the 
Federal  Constitution  and  statutes  and  is  like  unto  that  of  the  High 
Court  of  Chancery  in  England  at  the  time  of  the  adoption  of  the 
Judiciary  Act  of  1789;  it  is  not  subject  to  limitations  or  restraints  by 
state  legislation  giving  jurisdiction  to  state  courts  over  similar  mat- 
ters. 

While  Federal  courts  cannot  seize  and  control  property  which  is  in  the 
possession  of  the  state  courts  and  have  no  jurisdiction  of  a  purely 
probate  character,  they  can,  as  courts  of  chancery,  exercise  jurisdic- 
tion, where  proper  diversity  of  citizenship  exists,  in  favor  of  creditors, 
legatees,  and  heirs,  to  establish  their  claims  and  have  a  proper  execu- 
tion of  the  trust  as  to  them. 

Although  complainant  in  this  case  asks  in  some  of  her  prayers  for  relief 
which  is  beyond  the  jurisdiction  of  the  court  as  being  of  a  purely 
probate  character  if  the  allegations  of  the  bill  support  them  the  court 
may  grant  other  prayers  for  relief  which  are  within  its  jurisdiction, 
and,  as  a  court  of  equity,  shape  its  decree  according  to  the  equity  of 
the  case. 

Where  the  bill  does  not  seek  to  set  aside  the  probate  of  a  will  or  inter- 
fere with  the  possession  of  the  probate  court,  the  Federal  court  of 
equity,  in  a  case  where  diverse  citizenship  exists,  may  determine  as 
between  the  parties  before  the  court  their  interests  in  the  estate  and 
such  decree  will  be  binding  upon,  and  may  be  enforced  against,  the 
executor. 

It  will  be  assumed  that  the  state  probate  court  will  respect  the  decree 

VOL.  ccxv — 3 


34  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

of  the  Federal  court  having  jurisdiction  settling  the  rights  of  parties 
in  an  estate,  and  the  denial  of  effect  of  such  a  decree  presents  a  claim 
of  Federal  right  which  can  be  protected  by  this  court. 

While  a  Federal  court  of  equity  cannot,  either  under  the  forty-seventh 
rule  in  equity  or  general  principles  of  equity,  proceed  to  adjudication 
in  the  absence  of  indispensable  parties,  if  it  can  do  justice  to  the  par- 
ties before  it  without  injury  to  absent  persons  it  will  do  so  and  shape 
the  decree  so  as  to  preserve  the  rights  of  those  actually  before  the 
court,  without  prejudice  to  the  rights  of  the  absentees. 

In  this  case  the  absent  party  was  not  of  the  same  State  as  complainant 
and  had  no  interest  in  common  with  complainant  and  while  a  proper, 
was  not  an  indispensable  party,  as  his  interests  were  separate  and 
could  be  protected  by  retention  of  his  legacy  by  the  executors  sub- 
ject to  adjudication  in  another  suit. 

The  facts,  which  involved  the  jurisdiction  of  the  Circuit 
Court,  are  stated  in  the  opinion. 

Mr.  E.  Howard  M^Caleb,  and  Mr.  E.  Hovxird  M^Caleb,  Jr., 
for  appellant: 

As  to  the  jurisdiction  of  the  Federal  court : 

Any  creditor,  heir  or  legatee  who  is  a  citizen  of  another 
State  has  the  right  to  institute  his  suit  in  the  Federal  court 
against  executors  and  administrators  and  all  other  parties 
interested,  who  are  citizens  of  the  same  State  as  decedent,  to 
determine  the  validity  and  extent  of  his  rights  and  claims  in 
the  property  of  the  estate;  nor  is  he  deprived  of  his  original 
right  to  maintain  and  to  try  his  suit  in  the  Federal  court  by 
his  failure  to  present  his  claim  to  the  state  court  as  provided 
by  the  administration  statutes  of  the  State.  Here  are  a  few 
of  the  authorities:  Suydam  v.  Broadnax,  14  Pet.  67;  Bank  v. 
Vaiden,  18  How.  503;  Borer  v.  Chapman,  119  U.  S.  587,  588, 
589;  Payne  v.  Hook,  7  Wall.  425,  430;  Lawrence  v.  Neilson, 
143  U.  S.  215,  224;  Hayes  v.  PraU,  147  U.  S.  557,  570;  Hess  v. 
Reynolds,  113  U.  S.  73;  Hyde  v.  SUme,  20  How.  170;  Byers  v. 
McAvley,  149  U.  S.  608;  Y(mley  v.  Lavender,  21  Wall.  276; 
Green  v.  Creighton,    23  How.  90. 

To  sustain  appellees'  contention  that  the  state  court,  hav- 


WATERMAN  v.  CANAIr-LOUISIANA  BANK  CO.     35 
215  U.  S.  Argument  for  Appellant. 

ing  acqidred  jurisdiction  over  the  succession,  is  alone  com- 
petent to  entertain  and  determine  every  issue  which  may  arise 
in  the  progress  of  the  cause,  whether  it  be  as  to  the  construc- 
tion of  the  will,  the  rights  of  heirs  and  legatees  to  the  estate, 
and  the  claims  of  creditor  which  may  be  asserted  against  it, 
whether  such  parties  be  citizens  of  other  States  or  not,  imtil 
the  administration  is  terminated,  the  fimds  distributed  and 
the  executor  discharged,  would  be  to  deny  the  judicial  power 
of  the  United  States  conferred  by  the  Constitution  as  extend- 
ing over  *' controversies  between  citizens  of  different  States" 
and  force  such  citizens  into  the  state  courts  in  order  to  have 
their  complaints  heard.  This  is  answered  by  Buck  v.  Col- 
bath,  3  Wall.  334,  347;  Watson  v.  Jones,  13  Wall.  679. 

FarreU  v.  O'Brien,  199  U.  S.  ^,  is  claimed  to  be  decisive 
against  the  Federal  jurisdiction  over  this  Ijjll,  but  it  can  be 
distinguished  as  in  that  case  the  only  question  was  as  to  the 
power  of  the  Circuit  Court  to  annul  a  will  admitted  to  probate. 
It  was  held  that,  where  the  laws  of  a  State  afforded  a  remedy 
by  contest  in  proceedings  supplementary  to  the  origmal  pro- 
bate proceedings,  such  a  contest  was  not  inter  partes,  and 
hence  not  within  the  designation  of  "a  suit  at  law  or  in  eq- 
uity." It  was  further  held  that,  where  the  construction  and 
effect  of  the  will  is  wholly  subordinate  to  the  sole  issue  of 
probate.  Federal  jurisdiction  did  not  attach  imder  the  rule 
"that  no  instrument  can  be  effective  as  a  will,  no  rights  in 
relation  to  it  can  arise  imtil  preliminary  probate  has  been 
first  made."  Ellis  v.  Davis,  109  U.  S.  485.  Bijt  here  there  is 
no  contest  over  the  existence  or  non-existence  of  the  will, 
and  sucli  a  question  is,  therefore,  a  moot  one.  In  Louisiana, 
an  action  to  set  aside  a  will  already  admitted  to  probate  is 
strictly  and  purely  an  independent  action  in  nullity  between 
parties.  Unlike  the  Washington  statutes,  involved  in  Far- 
reU V.  O'Brien,  the  judgment  setting  aside  the  will  only  binds 
the  parties,  inures  only  to  the  benefit  of  the  particular  con- 
testant, and  is  not  operative  as  to  the  whole  world.  EUis  v. 
Dams,  109  U.  S.  485;  Gaines  v.  Fuentes,  92  U.  S.  10.    As  to 

0 


36  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

those  not  parties,  the  judgment  of  probate  stiU  stands  pnma 
facie  valid.  Stuxession  of  Barker,  10  La,  Ann.  28;  Campion  v. 
Prescott,  12  Rob.  (La.)  56;  IngersoU  v.  Coram,  211  U.  S.  335; 
Garzot  v.  DeRubio,  209  U.  S.  283,  can  also  be  distinguished. 

The  modes  of  the  action  in  nullity  may  be  various,  but 
essentially  and  in  its  nature  it  is  one  inter  partes,  and  if  the 
cause  of  nullity  of  a  judgment  probating  a  will  is  not  one  of 
form,  but  one  of  substance,  relating  to  the  merits,  then  the 
courts  of  the  United  States  have  jurisdiction  where  diversity 
of  citizenship  exists  and  state  rules  on  the  subject  cannot 
deprive  them  of  it.  Barrow  v.  Hunton,  99  U.  S.  80,  85;  Ar- 
rowsmith  v.  Gleason,  129  U.  S.  86,  98;  Johnson  v.  Waters,  111 
U.  S.  640,  667.  It  is,  however,  out  of  place  to  pursue  this 
matter  at  length,  since  there  is  nothing  in  the  case  that  seeks 
to  set  aside  the  probate  of  the  will.  The  sole  question  is :  Have 
the  Federal  courts  jurisdiction  to  establish  a  claim  or  right 
against  and  into  an  estate  where  the  parties  are,  on  one  side 
citizens  of  one  State  and  on  the  other  citizens  of  another 
State?  The  long  line  of  jurisprudence  of  this  court  remains 
unbroken.  The  question  has  been  answered  in  the  affirma- 
tive. 

As  to  the  indispensability  of  parties : 

That  the  right  of  action  for  the  establishment  of  his  claim, 
as  well  as  his  interest  by  an  heir  is  separable  from  that  of  his 
co-heirs  is  the  law  of  Louisiana.  Tugwell  v.  Tugwell,  32  La. 
Ann.  848;  Denbridge  v.  Crawley,  43  La.  Ann.  504;  Glasscock 
V.  Clark,  33  La.  Ann.  584;  Bumey  Heirs  v.  Ludding,  41 
La.  Ann.  627,  632;  Denegre  v.  Denegre,  33  La.  Ann.  689; 
Skipwith  V.  Glathary,  34  La.  Ann.  28;  Arts.  113  and  120,  Code 
of  Practice  of  Louisiana. 

Even  if  Louisiana  jurisprudence  cannot  be  invoked  to  con- 
trol the  jurisdiction  of  the  Federal  court,  sitting  in  equity, 
nevertheless  it  should  control  the  question  upon  which  equity 
jurisdiction  as  to  parties  is  founded  concerning  the  character 
of  an  heir's  interest  in  the  estate  as  separate  from  that  of  his 
co-heir.    At  least,  it  is  persuasive,  since  it  fully  accords  with 


WATERMAN  v.  CANAL-LOUISIANA  BANK  CO.    37 
216  U.  S.  Argument  for  Appellees. 

equity  jurisdiction  as  to  parties.  Payne  v.  Hook,  7  Wall.  425, 
433;  Story's  Equity  Pleading,  10th  ed.,  §§  89,  207a,  212. 

The  strict  rule  as  to  parties  will  yield  if  the  court  can  pro- 
ceed to  decree  and  do  justice  to  the  parties  before  it  without 
injury  to  the  absentees.  Cooper's  Eq.  PI.  35;  West  v.  Randall 
2  Massachusetts,  181 .  In  Minnesota  v.  Northern  Securities  Co,, 
184  U.  S.  199,  235,  this  court  regarded  the  absent  parties  as 
absolutely  indispensable  to  the  main  cause  of  action,  which  is 
not  the  case  here.  See  Payne  v.  Hook,  7  Wall.  425;  Van 
BokeUen  v.  Cook,  Fed.  Cas.  No.  16,831 ;  Elmendorf  v.  Taylor, 
10  Wheat.  167;  Delaware  County  v.  Diebold  Safe  Co.,  133  U.  S. 
473. 

Complainant  may  be  required  to  waive  her  allegation  as 
to  Davis  and  still  the  court  has  jurisdiction.  Northey  v. 
Northey,  2  Arkansas,. 77;  S.  C,  26  Eng,  Reprint,  447;  WH- 
liams  V.  Williams,  9  Mod.  299;  S.  C,  88  Eng.  Reprint,  465. 

Reservation  of  Davis'  rights  need  not  be  made  by  amend- 
ment; the  court  may  modify  the  decree  prayed  for  to  meet 
it.    Harding  v.  Handy,  11  Wheat.  103,  132. 

Mr.  Wm.  C.  Dufour,  Mr.  Edgar  H.  Farrar,  Mr.  Jas.  Mo- 
Connell,  Mr.  Chas.  E.  Fenner,  Mr.  Geo.  C.  Walshe,  Mr.  Geo.  H. 
Ternherry,  Mr.  H.  Garland  Dupre,  Mr.  S.  McC.  Lawrason, 
Mr.  Walter  Guion,  Mr.  Victor  Leovy,  Mr.  Pierre  Crdbites  and 
Mr.  H.  Generes  Dufour  for  appellees : 

No  Federal  court  has  jurisdiction  to  remove  an  entire  suc- 
cession administration  from  a  state  court,  as  the  bill  in  this 
case  proposes  to  do.  The  state  court  acted  first,  and,  imder 
the  law  of  Louisiana,  has  the  entire  estate  in  its  possession 
and  its  admmistration,  and  it  is  entitled  to  proceed  with  that 
administration  until  it  shall  be  completed.  If  complainant's 
contention  is  correct,  a  non-resident  creditor  of  an  estate  in 
the  hands  of  a  receiver  appointed  by  a  state  court  can  file  a 
suit  in  a  Federal  court  against  the  state  court  receiver,  and 
request  the  Federal  court,  not  only  to  pass  upon  the  litigated 
claim,  but  further  to  fix  the  costs  and  expenses  of  the  state 


38  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

court  receivership,  to  determine  who  were  the  creditors  of  the 
estate,  to  settle  the  amount  for  distribution  and  the  rank 
and  order  in  which  the  creditors  should  be  paid,  and  to  direct 
the  receiver  to  account  to  the  Federal  court  and  not  to  the 
state  court. 

No  precedent  for  this  remarkable  action  can  be  found. 
See  Farreil  v.  O'Brien,  199  U.  S.  89,  which  distinguishes 
Byers  v.  McAvley,  149  U.  S.  608;  Lawrence  v.  Nelson,  143 
U.  S.  223;  Hayes  v.  Pratt,  147  U.  S.  570. 

Under  Arts.  133,  134  of  the  constitution  of  Louisiana  and 
§  924  of  the  Code  of  Peace  of  that  State,  Denegre  v.  Denegre, 
33  La.  Ann.  689;  Succession  ofBumside,  34  La.  Ann.  728. 

See  Westfeldt  v.  Nor.  Car.  Mining  Co.,  166  Fed.  Rep.  706; 
Prentis  v.  Atlantic  Coast  Line,  211  U.  S.  210,  as  to  disinclina- 
tion of  this  court  to  permit  Federal  coiuts  to  interfere  with 
proceedings  in  state  courts  and  to  withdraw  questions  prop- 
erly and  necessarily  involved  in  proceedings  in  the  state  courts. 

On  the  indispensability  of  parties : 

Under  Shields  v.  Barrow,  17  How.  130;  Garzot  v.  DeRubio, 
209  U.  S.  283;  Minnesota  v.  Northern  Securities  Co.,  184  U.  S. 
237;  47th  Rule  in  Equity,  Arts.  967, 1014, 1017,  Code  of  Piac- 
tice  of  Louisiana,  Davis  is  an  absolutely  indispensable  party 
and  the  bill  cannot  be  maintained  in  any  court  of  equity 
without  him. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  presents  a  question  of  jurisdiction  concerning  the 
right  of  the  United  States  Circuit  Court  to  entertain  a  certain 
bill  in  equity.  Frances  E.  Waterman,  wife  of  Charles  A.  Crane, 
a  resident  of  Chicago  in  the  State  of  Illinois,  and  a  citizen  of 
that  State,  joined  by  her  husband,  also  a  citizen  of  Illinois, 
brought  the  suit  in  the  United  States  Circuit  Court  against  the 
Canal-Louisiana  Bank  and  Trust  Company,  executor  of  the 
last  will  and  testament  of  Caroline  Stannard  Tilton,  deceased,  a 
citizen  of  the  State  of  Louisiana  and  an  inhabitant  of  the  East- 


WATERMAN  v.  CANAI^-LOUISIANA  BANK  CO.      39 
215  TJ.  S.  Opinion  of  the  Court. 

em  District  of  Louisiana^  and  also  against  the  Charity  Hospi- 
tal of  New  Orleans,  St.  Ann's  Asylum,  Protestant  Episcopal 
Orphan  Asylum,  Home  for  Incurables,  Christian  Woman's 
Elxchange,  State  Insane  Asylum  of  Jackson,  Louisiana;  City 
of  New  Orleans  and  Louisiana  Retreat,  conducted  by  the  So- 
ciety of  the  Daughters  of  St.  Vincent  de  Paul,  all  and  each  of 
them  being  institutions  established  under  the  laws  of  Louis- 
iana and  citizens  of  the  State  of  Louisiana,  and  inhabitants  of 
the  Eastern  District  of  Louisiana;  also  against  Robert  Water- 
man and  Frederick  Waterman,  citizens  of  the  State  of  Louis- 
iana and  inhabitants  of  the  Eastern  District  thereof.  The 
bill  set  forth  in  substance:  That  Caroline  Stannard  Tilton, 
widow  of  Frederick  W.  Tilton,  late  of  the  city  of  New  Orleans, 
duly  made  and  published  her  last  will  and  testament  and  cod- 
icils thereunto  annexed,  and  by  said  will  and  codicils  said 
Caroline  Stannard  Tilton  gave  and  bequeathed  to  Robert 
Waterman  the  sum  of  $3^000;  to  the  said  Robert  Waterman 
and  his  wife,  fifteen  premium  bonds ;  to  Frederick  Waterman 
$3,000;  to  Frederick  Tilton  Davis,  $1,000,  and  the  whole  series 
of  No.  5,963  premium  bonds.  That  the  said  Caroline  Stannard 
Tilton  departed  this  life  on  or  about  the  sixth  of  July,  1908; 
that  the  Canal-Louisiana  Bank  and  Trust  Company,  executor 
in  said  will  named,  duly  proved  the  same  in  the  court  of  pro- 
bate jurisdiction  in  and  for  the  Parish  of  Orleans  in  the  State 
of  Louisiana,  and  undertook  the  executorship  thereof,  and  pos- 
sessed itself  of  the  personal  estate  and  effects  of  the  said  testa- 
trix to  a  very  considerable  amount,  and  more  than  sufficient 
to  discharge  her  just  debts,  funeral  expenses  and  legacies. 

The  complainant  further  avers  that  she  is  the  sole  surviving 
niece,  and  that  Robert  and  Frederick  Waterman  and  Freder- 
ick Tilton  Davis  are  the  sole  surviving  nephews  of  said  Caro- 
line Stannard  Tilton,  and  that  there  are  no  other  persons 
within  the  nearest  degree  of  kinship  of  the  said  testatrix;  and 
that  the  said  Frederick  Tilton  Davis  resides  in  the  State  of 
Alabama,  outside  of  the  court's  jurisdiction. 

She  avers  that  the  said  Robert  Waterman,  Frederick  Water- 


40  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  IT.  S. 

man  and  Frederick  Tilton  Davis,  legatees  in  said  will,  became 
entitled  to  have  and  receive  their  said  respective  legacies,  and 
did  receive  the  same,  and  accordingly,  by  receiving  said  be- 
quests have  renounced  the  succession  of  said  Caroline  Stannard 
Tilton,  deceased,  and  by  taking  said  legacies  have  renounced 
all  their  rights  as  heirs  at  law,  and  are  estopped  and  debarred 
from  claiming  any  portion  of  the  estate  undisposed  of,  because 
of  certain  provisions  of  the  will,  which  are  set  forth  in  the  bill. 

It  is  further  averred  by  the  complainant  that  by  reason  of 
the  renunciation  and  estoppel  of  said  legatees  the  complainant 
remains  the  sole  heir  at  law  of  Caroline  Stannard  Tilton,  and,  as 
such,  is  entitled  to  the  shares  which  would  have  gone  to  Fred- 
erick and  Robert  Waterman  and  Frederick  Tilton  Davis,  of 
the  same  degree  and  collateral  line,  by  right  of  accretioxi. 

She  further  avers  that  said  will  bequeathed  to  the  Charity 
Hospital  of  New  Orleans,  $2,000;  St.  Ann's  Asylum,  $2,000; 
Protestant  Episcopal  Orphan  Asyluln,  $2,000;  Home  for  In- 
curables, $2,000;  Home  for  Insane,  $3,000,  and  to  the  Chris- 
tian Woman's  Exchange,  $1,000;  and  that  after  satisfaction  of 
the  foregoing  special  legacies  and  bequests,  and  after  pa3mient 
of  all  costs  and  expenses  of  settlement  of  the  estate,  if  any  re- 
mained thereof  undisposed  of,  the  testatrix  willed  and  directed 
that  such  residue  should  be  divided  between  the  beneficiaries 
of  the  charitable  bequests  heretofore  made  to  the  various  in- 
stitutions, the  divisions  to  be  made  jyro  rata  in  proportion  to 
the  amount  of  special  legacies  already  made  to  them,  respec- 
tively. She  avers  that  at  the  time  of  making  said  will,  and  at 
the  time  of  the  death  of  said  testatrix,  there  was  no  such  insti- 
tution or  corporation  in  existence  known  as  Home  for  Insane, 
nor  was  the  testatrix  capable  of  incorporating  any  such  insti- 
tution under  her  will;  and  that  said  special  legacy  for  $3,000, 
and  the  pro  rata  share  of  the  residue  remained  undisposed  of 
because  of  the  facts  stated,  and  thereby  the  sum  of  $3,000  and 
the  pro  rata  share  of  the  proportion  of  the  estate  undisposed  of 
devolved  upon  the  complainant  as  sole  legal  heir  and  next  of 
kin  to  said  Caroline  Stannard  Tilton.    And  it  was  averred  that 


WATERMAN  v.  CANAL-LOUISIANA  BANK  CO.       41 
215  U.  S.  Opinion  of  the  Court. 

the  Christian  Woman's  Exchange  was  not  entitled  to  share  in 
the  residue,  because  the  bequest  to  it  of  $1,000  was  not  a  chari- 
table bequest,  and  the  said  Christian  Woman's  Exchange  was 
not  one  of  the  institutions  mentioned  in  the  will  to  share  in 
the  residue. 

Complainant  states  that  the  insane  asylum  situated  at  Jack- 
son, Louisiana,  the  Louisiana  Retreat,  conducted  by  the  So- 
ciety of  the  Daughters  of  Charity  of  St.  Vincent  de  Paul,  and 
the  city  of  New  Orleans  claim  and  assert  their  right  to  take 
and  receive  the  amount  of  said  lapsed  and  caducous  legacies, 
asserting,  that  the  testatrix  intended  them  as  beneficiaries  of 
her  boimty,  and  as  particular  legacies  under  her  will,  instead 
of  the  Home  for  Insane.  And  the  plaintiff  denies,  for  reasons 
stated  in  the  bill,  that  either  of  them  is  entitled  to  receive  such 
legacies  intended  for  the  Home  for  Insane,  and  she  charges 
that  the  amount  falling  to  her  as  sole  legal  heir  and  next  of  kin, 
because  of  her  right  to  the  lapsed  legacies  bequeathed  to  the 
non-existing  Home  for  Insane's  share  in  the  residue,  together 
with  that  part  and  proportion  of  the  estate  accessory  and  ap- 
purtenant thereto,  exceeds  the  sum  of  $90,000,  which  she  is  en- 
titled to  out  of  the  estate.  She  charges  that  the  estate,  after 
payment  of  the  special  legacies,  charges  and  costs  of  adminis- 
tration, will  amoimt  to  more  than  a  residue  of  $350,000.  She 
charges  that  the  executor  refuses  to  do  or  make  any  satisfac- 
tion whatever  in  respect  to  her  just  demands,  and  the  complain- 
ant avers  that  she  has  no  sufficient  remedy  under  the  rules  of 
common  law,  and  must  resort  to  a  court  of  equity  for  ade- 
quate relief.    And  the  prayer  of  the  bill  is : 

'*  Wherefore,  your  oratrix  prays  that  this  court  do  order,  ad- 
judge and  decree  (1)  that  the  particular  legacy  contained  in 
the  last  will  and  testament  of  Caroline  Stannard  Tilton,  de- 
ceased, to  so-called  'Home  for  Insane,*  and  also  the  interest  of 
said  legatee  in  the  residue  or  residuum  of  said  testatrix's  estate, 
be  declared  caducous,  to  have  lapsed,  because  of  the  uncer- 
tainty and  non-existence  of  said  legatee;  (2)  that  it  be  fur- 
ther declared  and  decreed  that  Robert  Waterman  and  Fred- 


42  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

erick  Waterman  have  renounced  and  abandoned  all  their  right, 
title  and  interest  as  heirs  of  said  Caroline  Stannard  Tilton, 
deceased,  in  the  said  lapsed  and  caducous  legacy  made  in  fa- 
vor of  the  so-called  '  Home  for  Insane ; '  (3)  that  it  be  further 
adjudged  and  decreed  that  your  oratrix,  as  the  nearest  sole 
heir  and  next  of  kin  of  said  Caroline  Stannard  Tilton,  deceased, 
capable  of  inheriting,  is  alone  entitled  to  the  amount  of  the 
caducous  and  lapsed  special  legacy  bequeathed  to  the  said  so- 
called  '  Home  for  Insane,'  for  the  sum  of  three  thousand  dollars 
($3,000.00),  and  to  the  proportionate  share  of  said  non-existing 
and  uncertain  legatee  in  the  residue  of  the  estate  of  said  Caro- 
line Stannard  Tilton,  and  that  the  Canal-Louisiana  Bank  & 
Trust  Company,  executor  of  said  deceased,  Caroline  Stannard 
Tilton,  be  condemned  to  pay  over  and  deUver  to  your  oratrix 
the  whole  amount  of  said  caducous,  special  legacy,  together 
with  the  proportionate  share  and  interest  of  said  so-called 
*Home  for  Insane'  in  the  residue  of  the  estate  of  said  de- 
ceased remaining  after  the  payment  of  the  particular  legacies 
and  the  costs  of  administration  of  her  estate,  and  for  such  fur- 
ther sum  as  the  court  may  find  to  be  justly  due  and  owing  unto 
your  oratrix  as  legal  heir  and  next  of  kin  of  the  said  Caroline 
Stannard  Tilton ;  (4)  and  that  it  be  further  ordered  and  decreed 
that  the  Christian  Woman's  Exchange  is  not  a  charitable  in- 
stitution or  entitled  as  such  under  said  will  to  participate  or  re- 
ceive any  share  or  portion  of  the  residue  of  the  estate  of  said 
deceased ;  (5)  and  that  an  account  be  taken  of  the  personal  es- 
tate and  effects  of  the  said  testatrix  coming  to  the  hands  of 
the  said  executor,  or  of  any  person  or  persons  by  its  order  or 
for  its  use,  and  also  of  the  said  testatrix's  fimeral  expenses, 
debts,  legacies  and  costs  of  administration,  and  especially 
showing  the  residue  remaining  in  the  hands  of  the  said  execu- 
tor after  making  the  aforesaid  deduction,  and  that  the  same 
may  be  applied  in  due  course  of  administration,  and  that  for 
these  purposes  proper  directions  may  be  given. 

**  And  your  oratrix  further  prays  for  all  general  and  equitable 
relief,  as  well  as  all  costs." 


WATERMAN  v.  CANAL-LOUISIANA  BANK  CO.     43 
215  U.  S.  Opinion  of  the  Court. 

From  an  early  period  in  the  history  of  this  court  cases  have 
arisen  requiring  a  consideration  and  determination  of  the  ju- 
risdiction of  the  courts  of  the  United  States  to  entertain  suits 
against  administrators  and  executors  for  the  purpose  of  es- 
tablishing claims  against  estates,  and  to  have  a  determination 
of  the  rights  of  persons  claiming  an  interest  therein.  And  this 
court  has  had  occasion  to  consider  how  far  the  jurisdiction  in 
equity  of  the  courts  of  the  United  States  in  such  matters  may 
be  aflfected  by  the  statutes  of  the  States  providing  for  courts 
of  probate  for  the  establishment  of  wills  and  the  settlement 
of  estates.  We  will  not  stop  to  analyze  or  review  in  detail  all 
these  cases,  as  they  have  been  the  subject  of  frequent  and  re- 
cent consideration  in  this  court.  The  general  rule  to  be  de- 
duced from  them  is  that,  inasmuch  as  the  jurisdiction  of  the 
courts  of  the  United  States  is  derived  from  the  Federal  Con- 
stitution and  statutes,  that  in  so  far  as  controversies  between 
citizens  of  different  States  arise  which  are  within  the  es- 
tablished equity  jurisdiction  of  the  Federal  courts,  which  is 
like  unto  the  High  Court  of  Chancery  in  England  at  the  time 
of  the  adoption  of  the  Judiciary  Act  of  1789,  the  jurisdiction 
may  be  exercised,  and  is  not  subject  to  limitations  or  restraint 
by  state  legislation  establishing  courts  of  probate  and  giving 
them  jurisdiction  over  similar  matters.  This  court  has  uni- 
formly maintained  the  right  of  Federal  courts  of  chancery  to 
exercise  original  jurisdiction  (the  proper  diversity  of  citizen- 
ship existing)  in  favor  of  creditors,  legatees  and  heirs  to  es- 
tablish their  claims  and  have  a  proper  execution  of  the  trust  as 
to  them.  In  various  forms  these  principles  have  been  asserted 
in  the  following,  among  other  cases:  Suydam  v.  Broadnax,  14 
Pet.  67;  Hyde  et  d.  v.  Stone,  20  How.  170,  175;  Green's  Ad,  v. 
Creighton  et  oZ.,  23  How.  90;  Payne  v.  Hook,  7  Wall.  425;  Lav)- 
rence  v.  Nelson,  143  U.  S.  215;  Hayes  v.  PraU,  147  U.  S.  557, 
670;  Byers  v.  McAidey,  149  U.  S.  608;  Ingersoll  v.  Coram,  211 
U.  S.  335. 

The  rule  stated  in  many  cases  in  this  court  affirms  the  juris- 
diction of  the  Federal  courts  to  give  relief  of  the  nature  stated. 


44  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

notwithstanding  the  statutes  of  the  State  undertake  to  give  to 
state  probate  courts  exclusive  jurisdiction  over  all  matters 
concerning  the  settlement  of  accounts  of  executors  and  ad- 
ministrators in  the  distribution  of  estates.  This  rule  is  sub- 
ject to  certain  qualifications,  which  we  may  now  notice.  The 
courts  of  the  United  States,  while  they  may  exercise  the  juris- 
diction, and  may  make  decrees  binding  upon  the  parties,  can- 
not seize  and  control  the  property  which  is  in  the  possession  of 
the  state  court.  In  Byers  v.  McAuley,  supra,  the  rule  was 
thus  tersely  stated  by  Mr.  Justice  Brewer,  delivering  the  opin- 
ion of  the  court : 

''A  citizen  of  another  State  may  establish  a  debt  against 
the  estate.  Yonley  v.  Lavender,  21  Wall.  276;  Hess  v.  Reyn- 
olds, 113  U.  S.  73.  But  the  debt  thus  established  must  take 
its  place  and  share  of  the  estate  as  administered  by  the  pro- 
bate court;  and  it  cannot  be  enforced  by  process  directly 
against  the  property  of  the  decedent.  Yonley  v.  Lavender, 
supra.  In  like  manner  a  distributee,  citizen  of  another  State, 
may  establish  his  right  to  a  share  in  the  estate,  and  enforce 
such  adjudication  against  the  administrator  personally,  or  his 
sureties  {Payne  v.  Hook,  7  Wall.  425);  or  against  any  other 
parties  subject  to  liability  (Borer  v.  Chapman,  119  U.  S.  587), 
or  in  other  way  which  does  not  disturb  the  possession  of  the 
property  by  the  state  court.  (See  the  many  cases  heretofore 
cited.)" 

In  a  late  case,  where  the  subject  was  given  consideration  in 
this  court  {FarrtU  v.  O'Brien,  199  U.  S.  89)  while  the  rule  of 
the  earlier  cases  was  stated  and  their  binding  force  admitted, 
it  was  laid  down  that  the  Circuit  Court  of  the  United  States 
iH)uld  not  entertain  jurisdiction  of  a  bill  to  set  aside  the  pro- 
bate of  a  will  in  the  State  of  Washington,  because  by  the 
statutes  of  that  State  the  proceeding  was  one  purely  in  rem  and 
not  a  suit  inter  partrs,  sustainable  in  a  cinirt  of  equity.  That 
case  recognized  what  previous  cast^  had  held,  that  in  proceed- 
ings purely  of  a  probate  character  there  was  no  jurisdiction 
in  tin*  Federal  courts.    This  was  in  hannony  with  the  rule 


WATERMAN  v,  CANAL-LOUISIANA  BANK  CO.      46 
215  U.  S.  Opinion  of  the  Court. 

theretofore  laid  down  in  Byers  v.  McAvley,  supra,  in  which  it 
was  held  that  the  Federal  court  could  not  exercise  original 
jurisdiction  to  draw  to  itself  the  entire  settlement  of  the  es- 
tate of  the  decedent  and  the  accounts  of  administration,  or  the 
power  to  determine  all  claims  against  the  estate.  But  it  was 
there  decided  that  a  Circuit  Court  of  the  United  States  could 
entertain  jurisdiction  in  favor  of  citizens  of  other  States  to  de- 
termine and  award  by  decrees  binding  in  personam  their 
shares  in  the  estates. 

In  view  of  the  cases  cited,  and  the  rules  thus  established,  it 
is  evident  that  the  bill  in  this  case  goes  too  far  in  asking  to 
have  an  accounting  of  the  estate,  such  as  can  only  be  had  in 
the  probate  court  having  jurisdiction  of  the  matter;  for  it  is 
the  result  of  the  cases  that  in  so  far  as  the  probate  administra- 
tion of  the  estate  is  concerned  in  the  payment  of  debts,  and  the 
settlement  of  the  accounts  by  the  executor  or  administrator, 
the  jurisdiction  of  the  probate  court  may  not  be  interfered  with. 
It  is  also  true,  as  was  held  in  the  court  below  in  the  case  at 
bar,  that  the  prior  possession  of  the  state  probate  court  cannot 
be  interfered  with  by  the  decree  of  the  Federal  court.  Still,  we 
think  there  is  an  aspect  of  this  case  within  the  Federal  juri&- 
diction,  and  for  which  relief  may  be  granted  to  the  complain- 
ant, if  she  makes  out  the  allegations  of  her  bill  under  the  other 
prayers,  and  the  prayer  for  general  relief  therein  contained. 
Under  such  prayer  a  court  of  equity  will  shape  its  decree  ac- 
cording to  the  equity  of  the  case.  Waiden  v.  Bodley,  14  Pet. 
156,  164. 

The  complainant,  a  citizen  of  a  different  State,  brings  her 
bill  against  the  executor  and  certain  legatees  named,  who  are 
likewise  citizens  of  another  State,  and  are  all  citizens  of  Louis- 
iana, where  the  bill  was  filed,  except  one,  who  was  beyond  the 
jurisdiction  of  the  court,  and  for  the  reasons  stated  in  her  bill 
she  asks  to  have  her  interest  in  the  legacy  alleged  to  be  lapsed 
and  the  residuary  portion  of  the  estate  established. 

This  controversy  is  within  the  equity  jurisdiction  of  the 
courts  of  the  United  States  as  heretofore  recognized  in  this 


46  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

court,  and  such  jurisdiction  cannot  be  limited  or  in  anywise 
curtailed  by  state  legislation  as  to  its  own  courts.  The  com- 
plainant, it  is  to  be  noted,  does  not  seek  to  set  aside  the  pro- 
bate of  the  will  which  the  bill  alleges  was  duly  established  and 
admitted  to  probate  in  the  proper  court  of  the  State. 

The  United  States  Circuit  Court,  by  granting  this  relief, 
need  not  interfere  with  the  ordinary  settlement  of  the  estate, 
the  payment  of  the  debts  and  special  legacies,  and  the  deter- 
mination of  the  accounts  of  funds  in  the  hands  of  the  executor, 
but  it  may,  and  we  think  has  the  right  to  determine  as  between 
the  parties  before  the  court  the  interest  of  the  complainant  in 
the  alleged  lapsed  legacy  and  residuary  estate,  because  of  the 
facts  presented  in  the  bill.  The  decree  to  be  granted  cannot 
interfere  with  the  possession  of  the  estate  in  the  hands  of  the 
executor,  while  being  administered  in  the  probate  court,  but 
it  will  be  binding  upon  the  executor,  and  may  be  enforced 
against  it  personally.  If  the  Federal  court  finds  that  the  com- 
plainant is  entitled  to  the  alleged  lapsed  legacy  and  the  residue 
of  the  estate,  while  it  cannot  interfere  with  the  probate  court 
in  determining  the  amount  of  the  residue  arising  from  the  settle- 
ment of  the  estate  in  the  court  of  probate,  the  decree  can  find 
the  amount  of  the  residue,  as  determined  by  the  administra- 
tion in  the  probate  court  in  the  hands  of  the  executor,  to  be- 
long to  the  complainant,  and  to  be  held  in  trust  for  her,  thus 
binding  the  executor  personally,  as  was  the  case  in  Payne  v. 
Hook,  7  Wall.  425,  supray  and  IngersoU  v.  Corarrtj  211  U.  S.  335, 
supra. 

It  is  to  be  presumed  that  the  probate  court  will  respect  any 
adjudication  which  might  be  made  in  settling  the  rights  of 
parties  in  this  suit  in  the  Federal  court.  It  has  been  fre-^ 
quently  held  in  this  court  that  a  judgment  of  a  Federal  court 
awarding  property  or  rights,  when  set  up  in  a  state  court,  if 
its  effect  is  denied,  presents  a  claim  of  Federal  right  which  may 
be  protected  in  this  court. 

The  Circuit  Court  in  this  case  construed  the  bill,  in  view  of 
its  broad  prayer  for  relief,  as  one  which  undertook  to  take  the 


WATERMAN  v.  CANAL-LOUISIANA  BANK  GO.      47 
215  U.  S.  Opinion  of  the  Court. 

entire  settlement  of  the  estate  from  the  hands  of  the  probate 
court,  and  denied  the  jurisdiction  of  the  Circuit  Court  of  the 
United  States  in  the  premises.  We  are  of  opinion  that,  to  the 
extent  stated,  the  bill  set  up  a  valid  ground  for  relief,  and, 
while  all  that  it  asks  cannot  be  granted,  enough  was  stated  in 
it  to  make  a  case  within  the  jurisdiction  of  the  Federal  courts 
within  the  principles  we  have  stated. 

At  the  last  term  of  the  court  counsel  in  this  case  were  invited 
to  file,  on  or  before  the  first  day  of  the  present  term  of  court, 
briefs  upon  the  question  whether  Frederick  Tilton  Davis, 
averred  in  the  bill  to  be  a  resident  of  the  State  of  Alabama  and 
outside  of  the  jurisdiction  of  the  court,  is  an  indispensable 
party  to  the  suit,  and  in  his  absence  a  dismissal  of  the  cause  re- 
quired for  want  of  jurisdiction  in  the  court  to  proceed  without 
him.  These  briefs  have  been  filed  and  we  come  now  to  con- 
sider this  branch  of  the  case.  In  so  doing  it  is  essential  to  re- 
member that  the  complainant's  cause  of  action  is  primarily 
against  the  executor  of  the  estate  for  a  decree  against  it  con- 
cerning the  right  of  the  complainant  to  recover  because  of  the 
alleged  lapse  of  the  legacy  to  the  Home  for  the  Insane,  and  the 
consequent  increase  in  the  residuary  portion  of  the  estate  to  be 
distributed  to  the  heirs  of  Mrs.  Tilton  because  of  the  allega^ 
tions  contained  in  the  bill.  The  Watermans  and  Davis  are 
made  parties  to  the  bill,  and  asked  to  be  excluded  from  a  par- 
ticipation in  the  recovery  because  of  the  alleged  renunciation 
of  their  rights  in  the  succession  to  Mrs.  Tilton.  If  it  shall  be 
found  that  they  have  not  thus  renounced  their  interest,  and  a 
decree  be  rendered  in  complainant's  favor,  they  are  entitled  to 
participate  in  the  recovery.  They  have  no  interest  in  common, 
however,  with  the  complainant,  and  the  shares  of  the  com- 
plainant and  other  heirs  are  separate  and  distinct.  The  ques- 
tion is,  therefore,  Is  Davis  an  indispensable  party  to  this  suit, 
his  absence  creating  a  want  of  jurisdiction  in  the  Federal 
court  to  proceed  without  him? 

Section  737  of  the  Revised  Statutes  of  the  United  States 
provides : 


48  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"  When  there  are  several  defendants  in  any  suit  at  law  or  in 
equity,  and  one  or  more  of  them  are  neither  inhabitants  of  nor 
found  within  the  district  in  which  the  suit  is  brought,  and  do 
not  volimtarily  appear,  the  court  may  entertain  jurisdiction, 
and  proceed  to  the  trial  and  adjudication  of  the  suit  between 
the  parties  who  are  properly  before  it;  but  the  judgment  or  de- 
cree rendered  therein  shall  not  conclude  or  prejudice  other 
parties  not  regularly  served  with  process  nor  voluntarily  ap- 
pearing to  answer/' 

To  the  same  effect  is  the  forty-seventh  equity  rule.  This 
statute  and  rule  permit  the  court  to  proceed  with  the  trial  and 
adjudication  of  the  suit,  as  between  parties  who  are  properly 
before  it,  and  preserves  the  rights  of  parties  not  voluntarily 
appearing,  providing  their  rights  are  not  prejudiced  by  the  de- 
cree to  be  rendered  in  the  case.  This  rule  has  been  said  to  be 
declaratory  of  the  already-established  equity  practice.  Shields 
v.  Barrow,  17  How.  130;  1  Street's  Federal  Equity  Practice, 
§533,  and  cases  there  cited.  This  rule  does  not  permit  a 
Federal  court  to  proceed  to  a  decree  in  that  class  of  cases  in 
which  there  is  an  absence  of  indispensable,  as  distinguished 
from  proper,  or  even  necessary  parties,  for  neither  the  absence 
of  formal,  or  such  as  are  commonly  termed  necessary  parties, 
will  defeat  the  jurisdiction  of  the  court ;  provided,  in  the  case 
of  necessary  parties,  their  interests  are  such  and  so  far  separable 
from  those  of  parties  before  the  court,  that  the  decree  can  be  so 
shaped  that  the  rights  of  those  actually  before  the  court  may 
be  determined  without  necessarily  affecting  other  persons  not 
within  the  jurisdiction.  After  pointing  out  that  there  may  be 
formal  parties,  of  whose  omission  the  court  takes  no  account, 
Mr.  Justice  Miller,  in  delivering  the  opinion  in  Barney  v.  BaUir 
more,  6  Wall.  280,  went  on  to  say : 

"There  is  another  class  of  persons  whose  relations  to  the 
suit  are  such  that  if  their  interest  and  their  absence  are  for- 
mally brought  to  the  attention  of  the  court,  it  will  require 
them  to  be  made  parties,  if  within  its  jurisdiction,  before  de- 
ciding the  case.    But  if  this  cannot  be  done,  it  will  proceed  to 


WATERMAN  v.  CANAI^LOUISIANA  BANK  CO.      49 
215  U.  S.  Opinion  of  the  Court. 

administer  such  relief  as  may  be  in  its  power  between  the 
parties  before  it.  And  there  is  a  third  class  whose  interests  in 
the  subject-matter  of  the  suit  and  in  the  relief  sought  are  so 
bound  up  with  that  of  the  other  parties  that  their  legal  pres- 
ence as  parties  to  the  proceeding  is  an  absolute  necessity,  with- 
out which  the  court  cannot  proceed.  In  such  cases  the  court 
refuses  to  entertain  the  suit  when  these  parties  cannot  be  sub- 
jected to  its  jurisdiction." 

The  relation  of  an  indispensable  party  to  the  suit  must  be 
such  that  no  decree  can  be  entered  in  the  case  which  will  do 
justice  between  the  parties  actually  before  the  court  without 
injuriously  afifecting  the  rights  of  such  absent  party.  1  Street's 
Fed.  Equity  Practice,  §  519. 

If  the  court  can  do  justice  to  the  parties  before  it  without 
injuring  absent  persons  it  will  do  so,  and  shape  its  relief  in 
such  a  manner  as  to  preserve  the  rights  of  the  persons  not 
before  the  court.  If  necessary,  the  court  may  require  that  the 
bill  be  dismissed  as  to  such  absent  parties,  and  may  generally 
shape  its  decrees  so  as  to  do  justice  to  those  made  parties, 
without  prejudice  to  such  absent  persons.  Payne  v.  Hook,  7 
Wall.  425. 

Applying  these  principles  to  the  case  at  bar  we  are  of  opin- 
ion that  the  presence  of  Frederick  T.  Davis  as  a  party  to  the 
suit  is  not  essential  to  the  jurisdiction  of  the  Federal  court  to 
proceed  to  determine  the  case  as  to  the  parties  actually  before 
it.  In  other  words,  that  while  Davis  is  a  necessary  party  in  the 
sense  that  he  has  an  interest  in  the  controversy,  his  interest 
is  not  that  of  an  indispensable  party  without  whose  presence 
a  court  of  equity  cannot  do  justice  between  the  parties  before 
it,  and  whose  interest  must  be  so  affected  by  any  decree  to  be 
rendered  as  to  oust  the  jurisdiction  of  the  court. 

With  the  parties  before  it  the  court  may  proceed  to  deter- 
mine whether,  because  of  the  acts  alleged  in  the  bill,  the  heirs- 
at-law  of  Mrs.  Tilton  were  entitled  to  recover  because  of  the 
lapsed  legacy.  If  it  finds  the  issue  in  favor  of  the  complainant, 
it  may  proceed  to  determine  the  proportion  in  which  the  com- 
VOL.  ccxv — 4 


50  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

plainant  and  the  Watermans  are  entitled  to  share,  without 
prejudice  to  the  rights  of  Davis.  It  may  direct  the  retention  of 
his  share  in  the  hands  of  the  executors,  to  be  adjudicated  in 
some  other  suit,  or  may  otherwise  shape  its  relief  so  as  to  do 
justice  to  the  parties  before  the  court  without  afifecting  his 
interest. 

Upon  the  whole  case  we  are  of  opinion  that  the  Federal 
court  has  jurisdiction  for  the  purpose  of  ascertaining  the  rights 
of  the  complainant  to  recover  as  against  the  executor,  and  the 
interest  of  the  persons  before  the  court  in  the  fund.  While  the 
court  could  make  no  decree  which  would  interfere  with  the 
possession  of  the  probate  court,  it  had  jurisdiction  to  enter- 
tain the  bill  and  to  render  a  judgment  binding  upon  the  par- 
ties to  the  extent  and  in  the  manner  which  we  have  already 
stated.  We  are,  therefore,  of  the  opinion  that  the  court  below 
erred  in  holding  that  there  was  no  jurisdiction  to  entertain 
this  suit,  and  the  decree  is  reversed  and  the  cause  remanded 
to  the  Circuit  Court  of  the  United  States  for  the  Eastern  Dis- 
trict of  Louisiana  for  further  proceedings  in  accordance  with 
this  opinion. 

Mr.  Justice  White  dissents. 


■4«»i 


UNITED  STATES  v.  UNION  SUPPLY  COMPANY. 

ERROR  TO  THE   DISTRICT  COURT  OF  THE   UNFTED  STATES  FOR 

THE   DISTRICT  OF  NEW  JERSEY. 

No.  120.    Argued  October  13,  14,  1909.— Decided  November  8,  1909. 

Where  corporations  are  as  much  within  the  mischief  aimed  at  by  a 
penal  statute  and  as  capable  of  willful  breaches  of  the  law  as  in- 
dividuals the  statute  will  not,  if  it  can  be  reasonably  interpreted  as 
including  corporations,  be  interpreted  as  excluding  them. 

Where  a  penal  statute  prescribes  two  independent  penalties,  it  will  be 
construed  as  meaning  to  inflict  them  so  far  as  possible,  and,  if  one  is 


UNITED  STATES  v.  UNION  SUPPLY  CO.  51 

216  U.  S.  Argument  for  Plaintiff  in  Error. 

impossible,  the  guilty  defendant  is  not  to  escape  the  other  which  is 
possible. 
Section  6  of  the  act  of  May  9,  1902,  c.  784,  32  Stat.  193,  imposing  cer- 
tain duties  on  wholesale  dealers  in  oleomargarine  and  imposing 
penalties  of  fine  and  imprisonment  for  violations  applies  to  corpo- 
rations, notwithstanding  the  penalty  of  imprisonment  cannot  be 
inflicted  on  a  corporation. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  for  plaintiff  in  error . 

The  duty  to  make  the  returns  in  question  was  undoubtedly 
imposed  upon  corporations  as  well  as  upon  natural  persons. 
1.  Section  6  of  the  act  of  1902  is  a  reenactment  of  §  41  of 
the  act  *'to  reduce  revenue  and  equalize  duties  on  imports, 
etc.,"  approved  October  1,  1890,  26  Stat.  567,  which  latter 
act  undoubtedly  applied  to  both  natural  persons  and  corpo- 
rations but  was  defective  in  not  providing  any  penalty  for 
its  violation.  2.  To  construe  §  6  as  not  imposing  a  duty  on 
corporate  dealers  would  be  inconsistent  with  the  general  pur- 
poses of  the  oleomargarine  legislation.  3.  Section  6  imposes 
the  duty  on  wholesale  dealers,  without  distinction  between 
different  classes  of  dealers  and  in  this  the  section  is  consistent 
with  the  other  provisions  of  the  act,  which  all  relate  to  oleo- 
margarine, or  dealers  in  or  manufacturers  of  it  and  not  to 
particular  persons  or  classes. 

Corporations  being  under  the  duty  to  make  said  returns, 
they  are  subject  to  the  criminal  punishment  which  §  6  visits 
upon  violators  of  that  duty,  so  far  as  their  nature  makes 
possible.  1.  The  purpose  of  the  statute  will  be  largely  de- 
feated unless  punishment  can  be  imposed.  2.  There  is  no 
difBctdty  in  construing  the  word  "person''  in  the  final  clause 
as  including  a  corporation.  United  States  v.  Amedy,  11 
Wheat.  392,  412;  1  Clark  &  M.,  Priv.  Corp.,  §252;  StaU  v. 
Security  Bank  of  Clark,  2  So.  Dak.  538;  State  v.  B.  &  0.  R.  fi. 
Co.,  15  W.  Va.  362;  United  States  v.  B.  &  0.  R,  R,  Co.,  Fed. 
Cas.  No.  14,509;  United  States  v.  John  Kelso  Co.,  86  Fed.  Rep. 


52  OCTOBER  TERM,  1909, 

Argument  for  Defendant  in  Error.  215  U.  S. 

304;  Beaston  v.  Fanners'  Bank,  12  Pet.  102,  135;  Bank  of 
Augusta  v.  Earle,  13  Pet.  519,  588;  Rev.  Stat.,  §  1.  3.  The 
statute  should  therefore  be  construed  as  imposing  only  a 
fine  in  the  case  of  corporate  violators.  Lewis,  Suth.  on  Constr. 
Stat.,  2d  ed.,  §  372;  Commonwealth  v.  Pulaski  County  Co.  & 
M.  Assn.,  92  Kentucky,  197;  1  Clark  &  M.,  Priv.  Corp.,  §  251, 
p.  657.  4.  Where  it  is  impossible  to  impose  both  sorts  of 
punishment  the  imposition  of  only  one  would  not  be  an 
exercise  of  discretion  by  the  court;  hence  the  cases  of  Ex  parte 
Karstindick,  93  U.  S.  396;  In  re  MiUs,  135  U.  S.  266;  United 
States  V.  Pridgeony  153  U.  S.  48;  In  re  Johnson,  46  Fed.  Rep. 
477;  Harman  v.  United  States,  50  Fed.  Rep.  521;  In  re  Chris- 
tian, 82  Fed.  Rep.  199;  Woodruff  y.  United  States,  58  Fed.  Rep. 
766,  and  Whitwarth  v.  United  States,  114  Fed.  Rep.  502,  are 
not  in  point.  5.  The  mention  of  natural  persons  in  §5  of 
the  act  has  no  effect  upon  the  construction  of  §  6. 

If  the  construction  placed  on  §  6  by  the  trial  court  be 
correct,  then  corporations  may  violate  some  fifty  or  sixty 
other  important  criminal  statutes  similarly  worded. 

A  construction  which  would  limit  the  application  of  §6 
to  natural  persons  would  render  it  unconstitutional  or  would 
at  least  make  its  constitutionality  seriously  questionable. 
Hurtado  v.  California,  110  U.  S.  516,  535;  Caldwell  v.  Texas, 
137  U.  S.  692,  697;  Giozza  v.  Tieman,  148  U.  S.  657,  662; 
Downes  v.  Bidwell,  183  U.  S.  244,  291;  Dorr  v.  United  Stales, 
195  U.  S.  138,  147,  and  therefore  such  a  construction  is  to  be 
avoided.  United  States  v.  Delaware  &  Hudson  Co,,  213  U.  S. 
366,  407. 

Mr.  Isaac  R.  Hilt,  Jr.,  for  defendant  in  error-. 

The  act  of  May  9, 1902,  c.  784, 32  Stat.  193,  is  an  original  act 
which  also  amends  the  act  of  August  2,  1886,  and  is  not  to  be 
construed  as  a  supplemental  act,  as  the  plaintiff  in  error  en- 
deavors to  show. 

Section  5  of  that  act  applies,  in  express  terms,  to  corpora- 
tions, and  gives  the  court  discretionary  power  to  punish  either 


UNITED  STATES  v.  UNION  SUPPLY  CO.  63 

215  tJ.  8.  Opinion  of  the  Court. 

by  fine  or  imprisonment  or  both.  Since  a  corporation  cannot 
be  imprisoned,  the  court,  under  §  6,  cannot  disregard  so  much 
of  that  section  as  prescribes  punishment  by  imprisonment  and 
punish  only  by  fine.  United  States  v.  Braun,  158  Fed.  Rep. 
450. 

See  the  decision  of  Judge  Caldwell  holding,  in  a  case  in 
which  the  statute  prescribed  a  penalty  of  fine  and  imprison- 
ment, that  a  sentence  of  imprisonment  only  was  erroneous. 
Woodruff  V.  United  States,  58  Fed.  Rep.  766. 

If  the  penalty  prescribed  for  the  act  be  both  fine  and  im- 
prisonment, then,  so  far  as  the  punishment  cannot,  from  the 
nature  of  the  offender,  be  carried  out,  the  statute  is,  of  course, 
inoperative.  Commonwealth  v.  Association,  92  Kentucky,  197. 
See  also  Clark's  Criminal  Law,  2d  ed.,  79.  It  may  be  that  such 
a  construction  discloses  a  serious  defect  in  the  law;  but  if  so, 
that  defect  must  be  cured  by  congressional  and  not  judicial 
legislation.  United  States  v.  Braun,  158  Fed.  Rep.  456.  Also 
see  Cumberland  Canal  Corp.  v.  Portland,  56  Maine,  77;  Anr- 
droscoggin  Water  Power  Co.  v.  Bethel  Steam  Mill  Co.,  64 
Maine,  441. 

It  has  been  held,  in  substance,  that  oleomargarine  acts  are 
complete  in  themselves  and  contain  provisions  for  all  the 
punishment  that  Congress  intended  for  violations  thereof. 
United  States  v.  Lamson,  165  Fed.  Rep.  80;  Grier  v.  Tucker, 
150  Fed.  Rep.  658;  Schafer  v.  Craft,  144  Fed.  Rep.  907;  Craft 
v.  Shafer,  153  Fed.  Rep,  175;  S.  C,  154  Fed.  Rep.  1002. 

The  contention  of  the  Government  that  a  decision  adverse  to 
the  Government  will  affect  many  other  now  existing  laws 
seems  unworthy  of  the  high  ideal  which  this  court  has  ever 
endeavored  to  fill.  The  decisions  of  this  court  are  always  far- 
reaching  and  the  enactments  of  Congress  are  not  necessarily 
settled  law  until  passed  upon  by  this  tribunal. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  indictment  of  a  corporation  for  wilfully  violating 


54  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

the  sixth  section  of  the  act  of  Congress  of  May  9, 1902,  c.  784, 
§6,  32  Stat.  193,  197.  That  section  requires  "wholesale 
dealers"  in  oleomargarine,  etc.,  to  keep  certain  books  and  to 
make  certain  returns.  It  then  goes  on  as  follows :  "  And  any 
person  who  wilfully  violates  any  of  the  provisions  of  this 
section  shall,  for  each  such  offense,  be  fined  not  less  than 
fifty  dollars  and  not  exceeding  five  hundred  dollars,  and  im- 
prisoned not  less  than  thirty  days  nor  more  than  six  months.'' 
The  corporation  moved  to  quash  the  indictment  and  the 
District  Court  quashed  it  on  the  ground  that  the  section  is 
not  applicable  to  corporations.  Thereupon  the  United  States 
brought  this  writ  of  error. 

The  argument  for  the  defendant  in  error  is  drawn  from  an 
earlier  decision  by  the  same  court.  It  is  that  §  5  applies  in  ex- 
press terms  to  corporations,  and  gives  the  court  discretionary 
power  to  punish  by  either  fine  or  imprisonment,  or  both, 
whereas  in  §  6  both  punishments  are  imposed  in  all  cases  and 
corporations  are  not  mentioned;  that  it  is  impossible  to  im- 
prison a  corporation,  and  that  the  statute  warrants  no  sen- 
tence that  does  not  comply  with  its  terms.  United  States  v. 
Braun  &  Fitts,  158  Fed.  Rep.  456.  We  are  of  opinion  that  this 
reasoning  is  imsound.  In  the  first  place,  taking  up  the  argu- 
ment, drawn  from  §  5,  that  corporations  were  omitted  in- 
tentionally from  the  requirements  of  §  6,  it  is  to  be  noticed 
that  the  sixth  section  of  the  present  act  copies  its  requirements 
from  the  act  of  October  1,  1890,  c.  1244,  §  41,  26  Stat.  567, 621, 
which  did  not  contain  the  penal  clause.  In  its  earlier  form  the 
enactment  clearly  applied  to  corporations,  and  when  the  same 
words  were  repeated  in  the  later  act  it  is  not  to  be  supposed 
that  their  meaning  was  changed.  The  words  ''wholesale 
dealers''  are  as  apt  to  embrace  corporations  here  as  they  are  in 
§  2,  requiring  such  dealers  to  pay  certain  taxes.  We  have  no 
doubt  that  they  were  intended  to  embrace  them.  The  words 
"any  person"  in  the  penal  clause  are  as  broad  as  ''wholesale 
dealers"  in  the  part  prescribing  the  duties.  U.  S.  Rev. Stat., 
§  1.    It  is  impossible  to  believe  that  corporations  were  inten- 


UNITED  STATES  v,  UNION  SUPPLY  GO.  56 

215  U.  S.  OpinioQ  of  the  Ck)urt. 

tionally  excluded.  They  are  as  much  withm  the  mischief 
aimed  at  as  private  persons,  and  as  capable  of  a  "wilful" 
breach  of  the  law.  New  York  Central  &  Hudson  River  R.  R.  v. 
United  States^  212  U.  S.  481.  If  the  defendant  escapes,  it  does 
so  on  the  single  ground  that  as  it  cannot  suffer  both  parts  of  the 
punishment  it  need  not  suffer  one. 

It  seems  to  us  that  a  reasonable  interpretation  of  the  words 
used  does  not  lead  to  such  a  result.  If  we  compare  §  5,  the 
application  of  one  of  the  penalties  rather  than  of  both  is  made 
to  depend  not  on  the  character  of  the  defendant,  but  on  the  dis- 
cretion of  the  judge;  yet  there  corporations  are  mentioned  in 
terms.  See  Hawke  v.  E,  HuUon  &  Co,  Limited,  (1909)  2  K.  B. 
93, 98.  And  if  we  free  our  minds  from  the  notion  that  crimmal 
statutes  must  be  construed  by  some  artificial  and  conventional 
rule,  the  natural  inference,  when  a  statute  prescribes  two  in- 
dependent penalties,  is  that  it  means  to  inflict  them  so  far  as 
it  can,  and  that  if  one  of  them  is  impossible,  it  does  not  mean 
on  that  account  to  let  the  defendant  escape.  See  Commonr- 
wealth  V.  Pulaski  County  Agricultural  &  Mechanical  Assodar 
tian,  92  Kentucky,  197,  201.  In  Hawke  v.  E.  HuUon  &  Co. 
(1909),  2  K.  B.  93,  it  was  held  that  the  words  "any  person" 
in  one  section  of  a  penal  act  did  not  embrace  a  corporation 
notwithstanding  a  statute  hke  our  Rev.  Stat.,  §  1.  But  that 
was  not  so  much  on  the  ground  that  imprisonment  was  con- 
templated a£  a  punishment,  as  because  the  person  convicted 
was  to  be  "deemed  a  rogue  and  a  vagabond."  Moreover  it 
was  thought  that  corporations  could  be  reached  under  another 
section  of  the  act. 

Judgment  reversed. 


66  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 


FLEMING  V.  Mccurtain. 

APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR 

THE  EASTERN  DISTRICT  OF  OKLAHOMA. 

No.  253.    Argued  October  20,  21,  1909.— Decided  November  8, 1909. 

The  grant  in  letters  patent,  issued  in  pursuance  of  the  treaty  of  Dandng 
Rabbit  Creek  of  September  27, 1830,  7  Stet.  333,  conveying  the  tract 
described  to  the  Choctaw  Indians  in  fee  simple  to  them  and  their 
descendants  to  inure  to  them  while  they  should  exist  as  a  nation  and 
live  thereon,  was  a  grant  to  the  Choctaw  Nation,  to  be  administered 
by  it  as  such;  it  did  not  create  a  trust  for  the  individuals  then  com- 
prising the  nation  and  their  respective  descendants  in  whom  as 
tenants  in  common  the  legal  title  would  merge  with  the  equitable 
title  on  dissolution  of  the  nation. 

The  facts  are  stated  in  the  opinion. 

Mr.  Frank  Hagerman  and  Mr.  John  G.  Carlisle,  with  whom 
Mr.  Webster  BaRinger  and  Mr.  Albert  J.  Lee  were  on  the  brief 
for  appellants.^ 

Mr.  Edward  P.  HiUj  with  whom  Mr.  David  C.  McCurtain 
was  on  the  brief  for  Green  McCurtain,  appellee.^ 

The  Solicitor  General  for  Richard  A.  Ballinger,  Secretary 
of  the  Interior,  appellee.^ 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  purporting  to  be  brought  by  and  on 

^  These  briefs  consist  of  over  350  printed  pages  and  contain  rdsum^ 
and  compilations  of;  and  extracts  from,  the  treaties  and  statutes  abol- 
ishing Indian  tribal  government  and  the  distribution  of  the  Indian 
lands  among  the  members  of  the  five  civilized  tribes  under  the  plan 
of  the  Dawes  Commission. 


FLEMING  V,  Mccurtain.  57 

215  U.  8.  Opinion  of  the  Ck)urt. 

behalf  of  some  thirteen  thousand  persons  ''all  persons  of 
Choctaw  or  Chickasaw  Indian  blood  and  descent  and  members 
of  a  designated  class  of  persons  for  whose  exclusive  use  and 
benefit  a  special  grant  was  made"  of  certain  property  in  Okla- 
homa. The  principal  defendants  are,  the  Secretary  of  the  In- 
terior; McCurtain,  Chief  of  the  Choctaws;  Johnston,  Governor 
of  the  Chickasaws,  and  all  persons  whose  names  appear  with 
theirs  on  the  rolls  of  "Citizens"  of  the  Choctaw  and  Chickasaw 
Nations  respectively,  and  all  persons  whose  names  appear  upon 
the  "freedmen"  rolls  of  those  Nations,  as  approved  by  the  Sec- 
retary of  the  Interior  on  or  before  March  4,  1907,  these  being 
the  persons  to  whom  the  Secretary  of  the  Interior  is  proceed- 
ing to  allot  the  above-mentioned  property,  being  all  the  prop- 
erty of  the  tribe.  The  main  object  of  the  bill  is  to  restrain  the 
allotment  to  the  defendants  and  to  undo  it  so  far  as  it  has 
taken  place,  to  establish  the  title  of  the  plaintiffs  for  the  pur- 
pose of  allotment,  and  to  have  a  new  distribution  decreed.  A 
firm  of  lawyers  is  joined,  on  the  allegation  that  they  have  re- 
ceived a  portion  of  the  property  under  a  fraudulent  arrange- 
ment. The  bill  was  demurred  to  for  want  of  equity  and  for 
want  of  jurisdiction  in  the  court. 

The  Circuit  Court  examined  the  treaty  and  conveyance 
under  which  the  plaintiflFs  claim  and  held  that  they  did  not  con- 
fer the  rights  alleged  in  the  bill;  that  the  right  to  share  in  the 
distribution  depended  on  membership  in  one  of  the  two  tribes, 
except  in  the  case  of  freedmen,  specially  provided  for;  that 
who  were  members  of  the  respective  tribes,  and  entitled  to  en- 
rollment as  such,  was  a  matter  for  Congress  to  determine;  that 
Congress  had  adopted  certain  rolls  when  finally  approved  by 
the  Secretary  of  the  Interior;  that  the  Secretary  had  acted  and 
the  plaintiffs  had  been  excluded;  that  his  action  was  final,  and 
that  the  court  had  no  jurisdiction  in  the  case.  The  demurrer 
to  the  jurisdiction  was  sustained,  the  bill  was  dismissed,  and 
the  plaintiffs  appealed  to  this  court. 

The  plaintiffs  found  their  claim  upon  the  Choctaw  treaty  of 
Dancmg  Rabbit  Creek,  September  27,  1830,  Article  2,  7  Stat. 


58  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

333,  and  letters  patent  of  March  23, 1842,  coupled  with  a  treaty 
between  the  Choctaws  and  Chickasaws  of  January  17,  1837, 
ratified  by  the  Senate  March  24,  1837,  11  Stat.  573.  By  Ar- 
ticle 2  of  the  treaty  of  1830  *'The  United  States  under  a  grant 
specially  to  be  made  by  the  President  of  the  U.  S.  shall  cause 
to  be  conveyed  to  the  Choctaw  Nation  a  tract  of  country  west 
of  the  Mississippi  River,  in  fee  simple  to  them  and  their  de- 
scendants, to  inure  to  them  while  they  shall  exist  as  a  nation 
and  live  on  it;''  with  the  boundaries.  The  letters  patent  recite 
this  article,  and,  *in  execution  of  the  agreement,'  grant  the 
described  tract,  to  have  and  to  hold  the  same  "  as  intended  to 
be  conveyed  by  the  aforesaid  article  'in  fee  simple  to  them  and 
their  descendants  to  inure  to  them  while  they  shall  exist  as  a 
nation  and  live  on  it,*  liable  to  no  transfer  or  alienation  except 
to  the  United  States  or  with  their  consent."  The  treaty  with 
the  Choctaws  gave  the  Chickasaws  a  district  within  the  limits  of 
the  Choctaws'  country,  "to  be  held  on  the  same  terms  that  the 
Choctaws  now  hold  it,  except  the  right  of  disposing  of  it, 
which  is  held  in  common  with  the  Choctaws  and  Chickasaws, 
to  be  called  the  Chickasaw  district  of  the  Choctaw  Nation." 
The  plaintiffs  say  that  the  patent  conveyed  the  legal  title  to 
the  Choctaw  Nation  in  trust  for  such  persons  as  were  members 
of  the  tribe  at  the  date  of  the  treaty,  or  of  the  Chickasaw  tribe 
at  the  date  of  the  treaty  with  them,  and  their  respective  de- 
scendants, and  that  upon  the  dissolution  of  the  nation  the  legal 
title  merged  with  the  equitable  title,  and  the  designated  class 
became  the  absolute  owners  of  the  property  as  tenants  in  com- 
mon. 

The  plaintiffs,  in  aid  of  their  view,  refer  to  various  indica- 
tions that  the  policy  of  the  United  States  already  was  looking 
toward  the  disintegration  of  the  Indian  tribes,  point  out  that 
the  words  on  which  they  rely  were  interlined  in  the  Govern- 
ment draft  at  the  instance  of  the  Indians,  and  from  these  and 
other  circumstances  argue  that  their  construction  is  confirmed. 
They  say  that  the  dominant  phrase  is  "  in  fee  simple  to  them 
and  their  descendants,"  and  that  the  use  of  the  plural  '  them' 


FLEMING  V.  McCURTAlN.  59 

215  U.  S.  Opinion  of  the  Ck)urt. 

shows  a  transition  from  the  Nation  as  formal  grantee  to  the 
members  as  beneficiaries.  They  say  that  *  descendants'  was 
used  instead  of  '  heirs '  or  '  children '  to  avoid  questions  of 
legitimacy,  or  giving  an  absolute  title  to  living  members  and 
their  children,  and  to  establish  a  principle  of  devolution  suit- 
able to  the  mode  of  life  and  unions  in  those  Indian  tribes. 
They  conclude  that  the  words  "inure  to  them  while  they  shall 
exist  as  a  nation  and  live  on  it/'  only  mark  the  duration  of  the 
legal  title  and  do  not  cut  down  the  equitable  right  conferred 
by  the  earlier  words. 

As  we  cannot  agree  with  this  construction  it  will  be  unnec- 
essary to  consider  many  of  the  further  allegations  of  the  bill. 
The  foundation  of  the  plaintiffs'  case  is  upon  the  words  of  the 
treaty  and  the  patent  that  we  have  set  forth.  Those  words 
seem  to  us  to  convey  a  different  meaning  on  their  face,  a 
meaning  that  would  not  be  changed  but  rather  confirmed  if  we 
were  to  refer  at  length  to  the  earlier  and  later  dealings  with 
the  tribes,  which  we  shall  not  need  to  do.  We  should  mention, 
however,  that  the  United  States  already  had  ceded  this  tract 
to  the  Choctaw  Nation,  with  no  qualifying  words,  by  the 
treaty  of  October  18,  1820,  Article  2,  7  Stat.  210.  Choctaw 
NatUm  V.  UnUed  States,  119  U.  S.  1,  38.  The  treaty  of  1830 
only  varied  the  description  a  little  and  provided  for  a  special 
patent.  But  it  would  not  better  the  plaintiffs'  case  if  the 
treaty  of  1830  were  the  single  root  of  their  grant.  In  a  grant 
to  the  Choctaw  Nation  as  a  nation  it  was  natural,  as  in  other 
cases,  to  use  some  words  of  perpetuity.  Of  course  the  United 
States  could  use  what  words  it  saw  fit  to  manifest  its  purpose, 
but  the  habit  derived  from  private  conveyances  would  be 
likely  to  prevail,  and  as  in  such  instruments  the  gift  of  a  fee 
is  expressed  by  adding  to  the  name  of  the  grantee  the  words 
*  and  his  heirs, '  or  in  case  of  a  corporation,  although  unnec- 
essary, its  'successors  and  assigns,'  here  also  some  addition 
was  to  be  expected  to  the  mere  name  of  the  grantee.  The 
word  Nation  is  used  in  the  treaty  as  a  collective  noun,  and  as 
such;  according  to  a  common  usage,  is  accompanied  by  a  plural 


60  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

verb  in  the  very  next  article.  ("The  Choctaw  Nation  of  In- 
dians consent  and  hereby  cede.")  Therefore  the  second  article 
says  '  to  them '  rather  than  '  to  it, '  just  as  it  says  **  while  they 
(i.  e.,  the  Nation)  shall  exist  as  a  Nation,"  and  it  adds  to  the 
untechnical  'in  fee  simple'  untechnical  words  of  limitation 
of  a  kind  that  would  indicate  the  intent  to  confine  the  grant 
to  the  Nation,  which  '  successors'  would  not,  and  at  the  same 
time  to  imply  nothing  as  to  the  rules  for  inheritance  of  tribal 
rights,  as  "heirs"  might  have  seemed  to  do.  We  may  com- 
pare "for  the  Government  of  the  Choctaw  Nation  of  Red 
People  and  their  descendants,"  in  Article  4.  The  word  was 
addressed  to  the  Indian  mind. 

There  is  not  a  suggestion  of  any  trust  in  the  language  to 
either  the  technical  or  the  imleamed  reader,  and  it  is  most 
unlikely  that  the  United  States  would  have  attempted  to  im- 
pose one  upon  the  Choctaws  in  favor  of  the  existing  members 
of  the  tribe  in  the  very  'Treaty'  that  dealt  with  them  as  a 
quasi  independent  nation  recognized  by  Article  5  as  having 
the  right  to  make  war,  and  that  by  the  fourth  article  bound 
the  United  States  to  secure  to  that  nation  "the  jurisdiction 
and  government  of  all  the  persons  and  property  that  may  be 
within  their  limits  west,"  etc.  It  is  true  that  in  further 
promising  to  secure  the  nation  from  all  laws  except  those  en- 
acted by  their  own  National  Councils,  the  fourth  article  adds 
"not  inconsistent  with  the  Constitution,  Treaties  and  Laws 
of  the  United  States;"  but  this  addition  is  far  from  suggest- 
ing that  a  constitutional  right  of  property  has  been  conferred 
upon  a  designated  class,  that  might  be  enforced  in  a  Circuit 
Court  of  the  United  States  by  a  bill  in  equity  against  what  was 
called  a  Nation.  How  far  any  one  was  from  that  understand- 
ing or  from  doubting  that  all  the  rights  granted  by  the  United 
States  were  in  the  Choctaw  Nation  is  shown  by  the  treaty 
with  the  Chickasaws  upon  which  the  plaintiffs  rely.  The 
nation  had  no  right  to  make  that  treaty  as  it  did,  if  it  was 
subject  to  the  trust  supposed.  Again,  the  limitation  of  time, 
'  while  they  shall  exist  as  a  nation  and  live  on  it,'  shows  that 


FLEMING  V.  Mccurtain.  61 

215  U.  8.  Opinion  of  the  Court. 

the  grant  has  reference  to  the  corporate  existence  of  the  na- 
tion as  such,  and  very  plainly  qualifies  the  absoluteness  of  the 
earUer  words,  *4n  fee  simple."  The  suggestion  that  it  limits 
the  duration  of  the  legal  title  only  but  leaves  a  trust  out- 
standing is  simply  arbitrary.  If  the  plural  signifies  the  mem- 
bers of  a  class  constituted  cestuis  que  trust  the  hmitation 
would  attach  to  the  trust.  But  the  only  answer  necessary  is 
that  no  such  separation  or  intent  can  be  discovered  in  the 
words. 

What  we  have  said  shows  another  sufficient  answer  to  the 
plaintiffs'  claim.  They  say  and  argue,  as  they  must  in  order 
to  make  out  their  right  to  a  distribution  to  themselves,  that 
the  Choctaws  and  Chickasaws  no  longer  exist  as  nations.  But 
if  so,  the  grant  also  was  at  an  end  when  the  nations  ceased  to 
be,  and  it  rested  with  the  bounty  of  the  United  States  to  de- 
cide what  should  be  done  with  the  land,  except  so  far  as  it 
already  had  been  decided  by  treaties  or  statutes  upon  which 
the  plaintiffs  do  not  and  cannot  rely.  It  is  said  that  by  Arti- 
cle 18,  in  case  of  any  well-founded  doubt  as  to  the  construc- 

I  tion  of  the  treaty,  it  is  to  be  construed  most  favorably  to- 

I  ward  the  Choctaws.     But  there  is  no  well-founded  doubt, 

except  whether  the  construction  contended  for  would  have 
been  regarded  as  favorable  to  the  Choctaws,  since  it  would 

I  have  cut  down  the  autonomy  that  the  treaty  so  carefully  ex- 

pressed.   See  further  Stephens  v.  Cherokee  Nation,  174  U.  S. 

I  445,  488.  Cherokee  Nation  v.  Hitchcock,  187  U.  S.  294,  307. 

Lone  Wolfv,  Hitchcock,  187  U.  S.  553,  568. 

The  residue  of  the  bill  becomes  immaterial  upon  the  failure 
of  the  plaintiffs  to  make  out  a  title  under  the  treaty  and  pat- 
ent. It  refers  to  the  act  of  June  28, 1898,  c.  517,  30  Stat.  495, 
and  the  earlier  statutes  leading  up  to  it,  which  estabUshed  a 
commission,  ordered  it  to  prepare  correct  rolls  of  citizenship, 
and  provided  by  §  21  of  the  act  of  1898  that  the  rolls  so  made, 
when  approved  by  the  Secretary  of  the  Interior,  should  be 
final,  (See  also  Acts  of  March  3,  1901,  c.  832,  31  Stat.  1058, 
1077;  April  26,  1906,  c.  1876,  34  Stat.  137.)    By  §  11  a  divi- 


62  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

sion  was  to  be  made  among  the  "  citizens  "  of  the  tribes  accord- 
ing to  the  rolls,  and  by  §  12  the  allottees  were  to  have  midis- 
turbed  possession  when  the  report  of  the  allotments  had  been 
made  to  the  Secretary  of  the  Interior  and  confirmed  by  him. 
By  §  29  an  agreement  with  the  Choctaws  and  Chickasaws  on 
the  matter  was  ratified,  and  by  act  of  July  1,  1902,  c.  1362, 
32  Stat.  641,  a  further  agreement  was  ratified,  which  again 
excluded  all  except  those  whose  names  were  on  the  roU.  Art. 
35.  The  bill  charges  that  these  agreements,  as  well  as  a  part 
of  the  act  of  1898,  were  void  as  excluding  some  of  the  plaintiffs 
who  were  not  residents  of  the  nation  on  June  28, 1898,  and  as 
not  having  been  approved  by  the  class,  or  a  majority  of  the 
class,  alleged  to  have  been  designated  by  the  treaty  and  patent 
that  we  have  discussed.  The  bill  goes  on  to  allege  that  rolls 
were  prepared  by  the  Commission,  and  approved  by  the  Secre- 
tary, within  the  time  allowed  by  the  statutes,  (Act  of  April  26, 
1906,  c.  1876,  §  2,  34  Stat.  137),  and  that  the  time  has  ex- 
pired, but  the  rolls  were  not  made  in  conformity  to  the  act  of 
1898,  and  are  not  correct  but  fraudulent,  in  various  particulars 
set  forth. 

But  these  allegations  make  out  no  case  for  the  plaintiffs. 
It  is  said  that  the  statutes  recognize  individual  rights  as  al- 
ready existing.  It  is  true  that  by  a  treaty  of  June  22,  1855, 
11  Stat.  611,  the  United  States  guaranteed  the  lands  "to  the 
members  of  the  Choctaw  and  Chickasaw  tribes,  their  heirs 
and  successors,  to  be  held  in  common;  so  that  each  and  every 
member  of  either  tribe  shall  have  an  equal,  undivided  interest 
in  the  whole"  with  provisos.  But  the  plaintiffs  do  not  claim 
under  this  treaty  or  mention  it  in  their  bill,  or  a  treaty  of 
April  28,  1866,  14  Stat.  769,  by  Articles  11-36  of  which  the 
change  from  common  to  individual  ownership  was  agreed, 
and  it  was  provided  that  unselected  land  should  "  be  the  com- 
mon property  of  the  Choctaw  and  Chickasaw  Nations,  in 
their  corporate  capacities,"  etc.  Art.  33.  They  might  be 
descendants  or  the  members  of  the  tribe  as  it  was  in  1839  or 
1842,  and  yet  not  members  or  heirs  of  members  of  the  tribe 


MARBLES  V,  CREECY.  63 

215  U.  S.  Syllabus. 

of  1854,  therefore  it  is  unnecessary  to  construe  this  treaty. 
Neither  do  the  plaintiffs  claim  under  any  title  to  be  derived 
from  the  statute  providing  for  distribution  according  to  the 
rolls  of  citizenship.  They  do  not  allege  that  they  are  citizens 
or  attempt  to  bring  themselves  within  any  grant  later  than 
the  treaty  and  patent  that  we  have  discussed.  They  disclose 
that  their  names  are  not  upon  the  rolls  and  that  the  decision 
of  the  Secretary  of  the  Interior  has  been  against  them  and 
they  show  no  reason  for  our  not  accepting  the  rolls  and  deci- 
sion as  final  according  to  the  terms  of  the  distributing  acts. 
See  West  v.  Hitchcock,  205  U.  S.  80;  GarfiM  v.  Goldsby,  211 
U.  S.  249,  259. 

Decree  affirmed. 


•  mmm* 


MARBLES  V.  CREECY,  CHIEF  OF  POLICE. 

APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR 

THE  EASTERN  DISTRICT  OF  MISSOURI. 

No.  23.    Submitted  November  5,  1909.— Decided  November  Id,  1909. 

The  executive  of  a  State  upon  whom  a  demand  is  made  for  the  surren- 
der of  a  fugitive  from  justice  may  act  on  the  papers  in  the  absence 
of,  and  without  notice  to,  the  accused,  and  it  is  for  that  executive  to 
determine  whether  he  will  regard  the  requisition  papers  as  sufficient 
proof  that  the  accused  has  been  charged  with  crime  in,  and  is  a 
fugitive  from  justice  from,  the  demanding  State,  or  whether  he  will 
demand,  as  he  may  if  he  sees  fit  so  to  do,  further  proof  in  regard  to 
such  facts. 

A  notice  in  the  requisition  papers  that  the  demanding  State  will  not 
be  responsible  for  any  expenses  attending  the  arrest  and  delivery  of 
the  fugitive  does  not  affect  the  legality  of  the  surrender  so  far  as  the 
rights  of  the  accused  under  the  Constitution  and  laws  of  the  United 
States  are  concerned. 

The  executive  of  the  surrendering  State  need  not  be  controlled  in  the 
discharge  of  his  duty  by  considerations  of  race  or  color,  or,  in  the 


64  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

absence  of  proof,  by  suggestions  that  the  alleged  fugitive  will  not  be 
fairly  dealt  with  by  the  demanding  State. 
On  habeas  corpus  the  court  can  assume  that  a  requisition  made  by  an 
executive  of  a  State  is  solely  for  the  purpose  of  enforcing  its  laws 
and  that  the  person  surrendered  will  be  legally  tried  and  adequately 
protected  from  illegal  violence. 

The  facts  are  stated  in  the  opinion. 

Mr,  George  D,  Reynolds  for  appellant : 

The  provisions  of  §  5278,  Rev.  Stat.,  will  be  strictly  con- 
strued and  all  the  requirements  of  the  statute  must  be  re- 
spected. Ex  parte  Hart,  63  Fed.  Rep.  259;  Ex  parte  Morgan, 
20  Fed.  Rep.  298;  Kerducky  v.  Dennison,  24  How.  66. 

The  following  facts  should  have  been  clearly  stated  in  the 
warrant  issued  by  the  Governor  of  surrendering  State  to  show 
that  it  is  issued  in  a  case  authorized  by  law  and  the  power  to 
issue  the  warrant  depends  upon  the  following  facts : 

1.  That  the  person  is  charged  in  some  State  or  Territory 
of  the  United  States  with  treason,  felony  or  other  crime. 

2.  That  he  had  fled  from  justice  and  was  found  to  be  a 
fugitive  from  justice. 

3.  That  he  was  found  in  the  State. 

4.  That  the  executive  authority  of  the  State  from  which 
he  fled  had  demanded  his  delivery  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime. 

If  the  warrant  omits  to  state  that  the  person  has  fled  from 
justice  or  that  he  is  found  in  the  asylum  it  is  defective.  Mat- 
ter of  Romaine,  23  California,  585,  592. 

The  executive  of  the  asylum  State  is  not  required  by  the 
act  of  Congress  to  cause  the  arrest  of  appellant  and  his  deliv- 
ery to  the  agent  appointed  to  receive  him  without  proof  of 
the  fact  that  he  was  a  fugitive  from  justice.  Ex  parte  Reggd, 
114  U.  S.  642. 

A  warrant  for  arrest  and  return  must  recite  and  set  forth 
the  evidence  necessary  to  authorize  the  state  executive  to  is- 
sue it  and  unless  it  does  it  is  illegal  and  void  and  the  warrant  is- 


MARBLES  V,  CREECY.  66 

215  TJ.  S.  Opinion  of  the  Ck)urt. 

sued  by  the  Governor  of  surrendering  State  should  have  stated 
that  as  such  governor  he  had  found  appellant  to  have  been  a 
fugitive  from  justice.  In  re  Doo  Woon,  18  Fed.  Rep.  898; 
Kentucky  v.  Dennisony  24  How.  66;  Ex  parte  Smith,  3  McLean, 
121. 

Where  the  warrant  alone  is  before  the  court  and  is  insuffi- 
cient on  its  face  the  prisoner  must  necessarily  be  discharged. 
Standahl  v.  Richardson,  34  Minnesota,  115;  Ex  parte  Powell,  20 
Florida,  806. 

The  warrant  must  recite  that  the  person  charged  is  a  fugi- 
tive from  justice  and  it  is  not  enough  that  it  state  that  the 
demanding  executive  has  represented  him  to  be  such.  In  re 
Jackson,  2  Flippin,  183. 

In  a  petition  for  a  writ  of  habeas  corpus  verified  by  the  oath 
of  the  petitioner  as  required  by  §  754,  Rev.  Stat.,  facts  duly  al- 
leged may  be  taken  to  be  true  unless  denied  by  the  return  or 
controlled  by  other  evidence,  and  in  this  case  the  return  of  the 
jailor  did  not  deny  that  the  prisoner  was  not  present  in  the 
demanding  State  at  the  time  when  the  crime  was  alleged  to 
have  been  committed.    Whitten  v.  Torrdinson,  160  U.  S.  231. 

There  was  no  appearance  or  brief  for  appellee. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

The  appellant  Marbles  was  indicted  in  the  Circuit  Court  of 
Warren  County,  Mississippi,  for  the  crime  of  having,  in  viola- 
tion of  the  laws  of  Mississippi,  made  a  deadly  assault  with 
the  willful  and  felonious  intent  to  kill  and  murder  the  per- 
son assaulted.  Miss.  Code,  §  1043.  The  deputy  sheriff  of  the 
county  furnished  a  certified  copy  of  the  indictment  to  the 
Governor  of  Mississippi,  as  well  as  his  affidavit  that  Marbles 
was  a  fugitive  from  the  justice  of  that  State  and  had  taken 
refuge  in  Missouri,  and  applied  for  a  requisition  upon  the 
Governor  of  Missouri  for  the  arrest  of  the  alleged  criminal  and 
his  delivery  to  the  agent  of  Mississippi,  to  be  conveyed  to  the 
VOL.  ccxv — 5 


66  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

latter  State  and  there  dealt  with  according  to  law.  There- 
upon the  Governor  of  Mississippi  issued  his  requisition,  in  the 
ordinary  form,  except  that  there  was  in  it  this  unusual,  not 
to  say,  extraordinary,  provision:  "This  State  will  not  be  re- 
sponsible for  any  expense  attending  the  execution  of  this  req- 
uisition for  the  arrest  and  delivery  of  fugitives  from  justice." 

The  Governor  of  Missouri  honored  the  requisition  made 
upon  him  and  issued  his  warrant  for  the  arrest  of  Marbles 
and  his  delivery  to  the  designated  agent  of  Mississippi.  That 
warrant  recited  the  fact  that  the  accused  was  proceeded 
against  as  a  fugitive  from  justice,  and  that  the  Governor  of 
Mississippi  had,  as  required  by  the  statute  of  the  United  States, 
produced  to  the  Governor  of  Missouri  a  copy  of  the  indict- 
ment certified  to  be  authentic,  and  charging  the  fugitive  with 
having  committed  the  crime  of  assault  to  kill.  Rev.  Stat., 
§  5278. 

Marbles  was  arrested  under  this  warrant,  and,  being  in 
custody,  sued  out  a  writ  of  habeas  corpus  from  one  of  the 
judges  of  the  Circuit  Court  of  the  United  States  for  his  dis- 
charge upon  the  ground  that  he  was  deprived  of  his  liberty 
in  violation  of  the  Constitution  of  the  United  States.  The 
application  for  the  writ  was  heard  in  that  court.  The  reasons 
assigned  in  support  of  the  contention  just  stated  were:  That 
the  Governor  of  Missouri  had  no  jurisdiction  to  issue  a  war- 
rant for  his  arrest,  in  that  it  was  not  shown  before  that  oflScer 
that  the  accused  was  a  fugitive  from  the  justice  of  Mississippi, 
or  had  fled  from  that  State,  nor  was  there  any  evidence  before 
the  Governor  of  Missouri  that  the  petitioner  was  personally 
or  had  been  continuously  present  in  Mississippi  when  the 
crime  in  question  was  alleged  to  have  been  committed;  that 
it  appeared  on  the  face  of  the  indictment  accompanying  the 
requisition  that  no  crime  under  the  laws  of  Mississippi  was 
legally  charged  or  had  been  committed  by  the  accused;  that 
it  did  not  appear  before  the  Governor  of  Missouri,  when  the 
requisition  was  presented  to  him,  that  the  petitioner  was,  in 
fact,  a  fugitive  from  the  justice  of  Mississippi;  that  said  req- 


MARBLES  V.  CREECY.  67 

215  U.  S.  Opinion  of  the  Court. 

uisition  was  not  certified  to  as  required  by  the  laws  of  the 
United  States;  that  there  was  not  produced  to  that  execu- 
tive a  copy  of  any  indictment  or  affidavit  certified  as  authen- 
tic by  the  Governor  of  Mississippi ;  and  that  the  petitioner  was 
not  present  before  the  Governor  of  Missouri  at  the  hearing 
before  him  of  the  warrant  of  extradition,  nor  was  he  given  an 
opportunity  to  meet  the  witnesses  face  to  face. 

No  reason  whatever  was  shown  on  the  hearing  of  the  appli- 
cation for  habeas  corpus  for  the  discharge  of  the  accused  from 
custody — nothing  that  showed  any  failure  to  conform  to  the 
requirements  of  the  Constitution  or  laws  of  the  United  States. 
The  material  allegations  of  fact  set  forth  in  the  application 
for  the  writ  are  wholly  unsupported  by  anything  in  the  record; 
indeed,  some  of  them  are  affirmatively  disproved  by  the  rec- 
ord. No  proof  at  all  appears  to  have  been  made  by  the  ac- 
cused of  any  essential  fact,  and  the  decision  of  the  court  must 
have  been  based  altogether  upon  the  same  official  documents 
that  were  presented  to  the  Governor  of  Missouri  supported 
by  the  legal  inferences  to  be  drawn  from  their  contents.  It 
was  made  to  appear  by  those  documents  that  the  accused 
was  charged  by  indictment  with  a  specified  crime  against  the 
laws  of  Mississippi  (Miss.  Code,  §  1043)  and  had  become  a 
fugitive  from  the  justice  of  that  State.  That  was  legally  suf- 
ficient, without  more,  to  authorize  a  requisition,  and  when 
the  Governor  of  Missouri  was  furnished,  as  he  was,  with  a 
copy  of  the  indictment  against  Marbles,  certified  by  the  Gov- 
ernor of  Mississippi  to  be  authentic,  it  then  became  the  duty 
of  the  Governor  of  Missouri,  under  the  Constitution  and  laws 
of  the  United  States,  to  cause  the  arrest  of  the  alleged  fugi- 
tive. So  reads  the  statute  enacted  in  execution  of  the  con- 
stitutional provision  relating  to  fugitives  from  justice.  Rev. 
Stat.,  §  5278.  It  is  true  that  it  does  not  appear  from  the  rec- 
ord before  us  that  there  was  any  evidence  before  the  Gov- 
ernor of  Missouri  other  than  the  requisition  of  the  Governor 
of  Mississippi  and  a  copy  of  the  indictment  against  the  alleged 
fugitive,  certified  to  be  authentic.    It  is  also  true  that,  so  far 


68  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

B8  the  Constitution  and  laws  of  the  United  States  are  con- 
cerned, the  Governor  of  Missouri  could  not  legally  have  issued 
his  warrant  of  arrest  unless  the  accused  was  charged  with 
what  was  made  by  Mississippi  a  crime  against  its  laws  and 
was  a  fugitive  from  justice.  But  those  facts  were  determin- 
able in  any  way  deemed  satisfactory  by  that  executive,  and 
he  was  not  bound  to  demand — although  he  may  have  required 
if  the  circumstances  made  it  proper  to  do  so — proof  apart 
from  proper  requisition  papers  that  the  accused  was  so 
charged  and  was  a  fugitive  from  justice.  He  was,  no  doubt,  at 
liberty  to  hear  independent  evidence  showing  that  the  act  with 
which  the  accused  was  charged  by  indictment  was  not  made 
criminal  by  the  laws  of  Mississippi  and  that  he  was  not  a 
fugitive  from  justice.  No  such  proof  appears  to  have  been  of- 
fered to  the  Governor  or  to  the  court  below.  But  the  official 
documents,  reasonably  interpreted,  made  a  pritm  facie  case 
against  the  accused  as  an  alleged  fugitive  from  justice  and 
authorized  that  executive  to  issue  his  warrant  of  arrest  as 
requested  by  the  Governor  of  Mississippi.  The  contention 
that  the  Governor  of  Missouri  could  not  act  at  all  on  the  req- 
uisition papers  in  the  absence  of  the  accused  and  without  pre- 
vious notice  to  him  is  unsupported  by  reason  or  authority, 
and  need  only  be  stated  to  be  rejected  as  unsound. 

The  principles  here  announced  are  firmly  established  by 
the  decisions  of  this  court.  McNichols  v.  Pease,  207  U.  S. 
100;  Ex  parte  Reggd,  114  U.  S.  642,  652,.  653;  Roberts  v.  Reilly, 
116  U.  S.  80,  95;  HyaU  v.  Corkran,  188  U.  S.  691,  719;  Munsey 
V.  CUmgh,  196  U.  S.  364,  372;  Pettibone  v.  Nichols,  203  U.  S. 
192;  Apjjieyard  v.  Massachusetts,  203  U.  S.  222. 

Other  questions  may  be  noticed.  One  is,  in  effect,  that  the 
requisition  of  the  Governor  of  Mississippi  was  invalid  because 
of  the  clause  or  provision  therein  that  that  State  would  not 
be  responsible  for  any  expense  attending  the  arrest  and  deliv- 
ery of  the  alleged  fugitive.  We  will  not  indulge  in  conjecture 
as  to  the  object  of  inserting  that  clause  in  the  requisition; 
particularly,  as  the  State  of  Mississippi  is  not  represented  in 


MARBLES  V,  CREECY.  69 

215  U.  S.  Opinion  of  the  Court. 

this  court  by  counsel.  It  is  suflScient  now  to  say  that  the 
warning  given  to  the  Governor  of  Missouri  that  Mississippi 
would  not  be  responsible  for  any  expense  attending  the  arrest 
and  delivery  of  the  alleged  fugitive  was  a  matter  for  the  con- 
sideration of  the  Governor  of  the  former  State  when  he  re- 
ceived the  oflBcial  demand  for  the  arrest  and  delivery  of  the 
appellant  as  a  fugitive  from  justice  and  a  copy  of  the  indict- 
ment against  Marbles,  certified  as  authentic.  It  was  not  a 
matter  that  could  legally  affect  the  inquiry  before  the  Circuit 
Court  on  habeas  corpus,  whether  the  requisition  of  the  de- 
manding State  and  the  action  thereon  by  the  Governor  of 
Missouri  were  in  substantial  conformity  with  the  Constitution 
and  the  laws  of  the  United  States,  and,  therefore,  not  in  any 
legal  sense  hostile  to  the  liberty  of  the  accused. 

The  other  question  to  be  noticed  is  that  raised  by  the  fol- 
lowing averments  in  the  application  for  the  writ  of  habeas 
corpus:  "Your  petitioner  further  states  that  he  is  a  negro, 
and  that  the  race  feeling  and  race  prejudice  is  so  bitter  in  the 
State  of  Mississippi  against  negroes  that  he  is  in  danger,  if 
removed  to  that  State,  of  assassination  and  of  being  killed, 
and  that  he  cannot  have  a  fair  and  impartial  trial  in  any  of 
the  courts  of  that  State,  and  that  to  deliver  him  over  to  the 
authorities  of  that  State  is  to  deprive  him,  as  a  citizen  of  the 
United  States  and  a  citizen  and  resident  of  the  State  of  Missis- 
sippi, of  the  equal  protection  of  the  laws."  It  is  clear  that  the 
executive  authority  of  a  State  in  which  an  alleged  fugitive 
may  be  found,  and  for  whose  arrest  a  demand  is  made  in  con- 
formity with  the  Co^stitution  and  laws  of  the  United  States, 
need  hot  be  controlled  in  the  discharge  of  his  duty  by  consider- 
ations of  race  or  color,  nor  by  a  mere  suggestion — certainly 
not  one  unsupported  by  proof,  as  was  the  case  here — ^that  the 
alleged  fugitive  will  not  be  fairly  and  justly  dealt  with  in  the 
State  to  which  it  is  sought  to  remove  him  nor  be  adequately 
protected,  while  in  the  custody  of  such  State,  against  the  ac- 
tion of  lawless  and  bad  men.  The  court  that  heard  the  appli- 
cation for  discharge  on  writ  of  habeas  corpus  was  entitled  to 


70  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

assume;  as  no  doubt  the  Governor  of  Missouri  assumed,  that 
the  State  demanding  the  arrest  and  delivery  of  the  accused 
had  no  other  object  in  view  than  to  enforce  its  laws,  and  that 
it  would,  by  its  constituted  tribunals,  officers  and  representa- 
tives, see  to  it  not  only  that  he  was  legally  tried,  without  any 
reference  to  his  race,  but  would  be  adequately  protected  while 
in  the  State's  custody  against  the  illegal  action  of  those  who 
might  interfere  to  prevent  the  regular  and  orderly  adminis- 
tration of  justice. 

We  perceive  no  error  of  law  in  the  record  and  the  judgment 
of  the  Circuit  Court  must  be  affirmed. 

his 80  ordered. 


McGILVRA  AND  BRESSLER,^  v.  ROSS,  STATE  LAJJD 
COMMISSIONER  OF  THE  STATE  OF  WASHINGTON. 

APPEAL  FROM  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS 

FOR  THE   NINTH   CIRCUIT. 

No.  328.    Argued  October  19,  20,  1909.— Decided  November  15,  1909. 

While  the  construction  of  the  act  of  Congress  under  which  a  patent 
issued  and  what  rights  passed  under  the  patent  present  Federal 
questions  which  give  the  Circuit  Court  jurisdiction  of  the  case  as 
one  arising  under  the  laws  of  the  United  States,  if  prior  decisions 
have  so  defined  such  rights  that  they  are  removed  from  controversy, 
jurisdiction  does  not  exist  in  the  absence  of  diverse  citizenship. 

The  decision  in  Shively  v.  Bowlby,  152  U.  S.  1,  which  determined  the 
relative  rights  of  a  patentee  of  the  United  States  and  one  holding 
under  a  conveyance  from  the  State  of  land  below  high  watermark 
applies  equally  to  lands  bordering  on  navigable  waters,  whether  tidal 
or  inland,  and  the  test  of  navigability  is  one  of  fact. 

Each  State  has  full  jurisdiction  over  the  lands  within  its  borders  in- 
cluding the  beds  of  streams  and  other  waters,  Kansas  v.  Colorado, 
206  U.  S.  46,  93,  subject  to  the  rights  granted  by  the  Constitution  to 
the  United  States. 

*  In  the  Circuit  Court  separate  cases  were  instituted  by  McGilvia 
and  Bressler,  respectively. 


McGILVRA  V.  ROSS.  71 

215  U.  8.  Statement  of  the  Case. 

Where  the  Circuit  Court  is  without  jurisdiction  because  the  Federal 
questions  presented  by  the  bill  are  no  longer  open  to  discussion  it 
should  dismiss  the  bill  and  not  decide  it  on  the  merits  in  order  that 
the  plaintiff's  rights,  if  any,  may  be  litigated  in  the  state  courts. 

164  Fed.  Rep.  604,  affirmed  as  to  lack  of  jurisdiction  and  case  remanded 
for  dismissal. 

These  cases  were  consolidated  in  the  Circuit  Court.  The 
appellants  were  complainants  in  the  suits  respectively,  and 
asserted  title  by  virtue  of  patents  from  the  United  States  to 
lands  bordering  on  and  touching  Lakes  Washington  and  Union 
in  the  State  of  Washington  to  the  lands  below  the  high-water 
mark  of  said  lakes  respectively,  against  a  title  claimed  by  the 
State.  The  appellee,  James  P.  Agnew,  is  the  auditor  of  the 
county  of  King,  and  the  other  appellees  constitute  the  board 
of  land  conmiissioners  of  the  State. 

The  fxmdamental  question  presented  is  whether  rights  be- 
low high-water  mark  passed  to  the  patentees  as  appurtenant 
to  the  uplands  conveyed  to  them  or  whether  they  vested  in  the 
State  upon  its  admission  into  the  Union  and  are  subject  to  the 
control  of  the  State. 

The  patent  in  the  McGUvra  case  was  issued  in  1866,  under 
the  act  of  Congress  of  April  24, 1820,  entitled  "An  act  making 
further  provisions  for  the  sale  of  public  lands;"  that  in  the 
Bressler  case  was  issued  under  the  provisions  of  the  act  of  Con- 
gress of  September  27,  1850,  entitled  "An  act  to  create  the 
office  of  surveyor  of  the  public  lands  in  Oregon,  and  to  provide 
for  the  survey  and  to  make  donations  to  the  settlers  of  the 
said  public  land."  It  is  alleged  that  the  lakes  arc  respectively 
non-tidal  bodies  of  water,  situated  wholly  within  the  county  of 
King;  Lake  Washington  being  about  twenty  miles  in  length, 
with  an  average  breadth  of  three  miles,  and  Lake  Union  being 
about  three  miles  in  length,  with  an  average  breadth  of  one 
mile ;  and  that  neither  lake  has  an  outlet,  navigable  for  boats, 
scows  or  lighters,  and  at  all  times  has  been  confined  to  the  con- 
veyance of  passengers  or  freight  to  and  from  different  points 
upon  said  lake;  and  that  neither  lake  is  now  or  ever  has  been 


72  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

susceptible  of  navigation,  so  far  as  the  carrying  of  passengers 
or  freight  is  concerned,  to  points  upon  the  lake  from  different 
counties  of  the  State,  to  and  from  other  States,  or  to  and  from 
foreign  nations,  and  that  the  same  can  never  be  used  unless  it 
be  by  a  very  extensive  system  of  canals  or  dredging  of  the  out- 
let thereof. 

It  is  alleged  that  the  height  of  the  waters  of  Lake  Washing- 
ton is  dependent  upon  the  amount  of  rainfall,  and  that  the  rise 
and  fall  of  the  water  "covers  and  uncovers  many  hundreds  of 
thousands  of  square  feet  of  land"  in  the  patented  tracts,  ex- 
ceeding the  value  of  $40,000.  As  to  Lake  Union,  it  is  alleged 
that,  by  a  dam  constructed  about  fifty  years  ago,  its  waters 
were  raised  and  are  maintained  about  seven  feet  higher  than 
their  natural  level.  And  further,  that  a  ditch  has  been  ex- 
cavated, crossing  a  narrow  neck  of  land  which  separates  Lake 
Union  from  Lake  Washington,  through  which  the  waters  of 
the  latter  flow  into  Lake  Union  and  keep  its  waters  at  practi- 
cally the  same  level. 

It  is  further  alleged  that  by  virtue  of  the  patents  and  the 
acts  of  Congress  under  which  they  were  issued  there  became 
vested  in  the  patentees  and  their  successors  the  ownership  of 
those  portions  of  the  lakes  immediately  in  front  of  the  tracts 
patented  "out  into"  the  "deep  waters"  of  the  lakes,  subject 
only  to  the  supervision  in  their  use  of  the  same  to  the  extent 
that  they  be  so  used  by  the  proprietor  thereof;  that  said  pro- 
prietor should  not  and  did  not  interfere  with  the  rights  of  other 
riparian  owners,  and  the  rights  of  the  public  in  navigating  the 
waters  of  said  lake.  And  that  they  became  and  are  vested 
from  the  dates  of  the  several  patents  with  the  exclusive  right 
and  privilege  to  make  such  fills  in  shallow  water,  and  to  erect 
such  piers,  docks  and  warehouses  as  might  be  convenient  and 
necessary  to  aid  and  facilitate  the  navigation  upon  the  waters 
of  the  lakes,  and  that  said  rights  were  so  vested,  "limited  only 
by  the  rights  of  supervision  in  the  Government;  that  said 
rights  be  exercised  in  such  a  manner  that  there  should  be  no 
interference  with  the  rights  of  other  riparian  owners,  or  with 


McGILVRA  V,  ROSS.  73 

215  U.  S.  Statement  of  the  Case. 

the  rights  of  the  public  to  freely  navigate  upon  the  navigable 
waters  of  said  lake,"  and  that  these  rights  were  conveyed  by 
the  patents  many  years  before  the-  admission  of  Washington 
into  the  Union. 

It  is  alleged  that  the  State  was  admitted  into  the  Union, 
November  11, 1889,  and  that  Article  XVII  of  the  constitution 
of  the  State  reads  as  follows : 

"  The  State  of  Washington  asserts  its  ownership  to  the  beds 
and  shores  of  all  navigable  waters  in  the  State  up  to  and  in- 
cluding the  line  of  ordinary  high  tide  in  waters  where  the  tide 
ebbs  and  flows,  and  up  to  and  including  the  line  of  ordinary 
high  water  within  the  banks  of  all  navigable  rivers  and  lakes: 
provided,  that  this  section  shall  not  be  construed  so  as  to 
debar  any  person  from  asserting  his  claim  to  vested  rights  in 
the  courts  of  the  State." 

That  by  virtue  of  this  provision  the  State  claims  the  owner- 
ship in  fee  of  all  the  waters  and  lands  under  the  waters  of  the 
lakes  up  to  and  including  the  line  of  ordinary  high  water,  and 
by  reason  of  such  claim  of  ownership  the  legislature  passed 
Senate  Bill  No.  101,  which  was  approved  by  the  governor 
February  4,  1907,  and  took  effect  immediately  upon  its  pas- 
sage. The  act  was  entitled  "  An  act  to  provide  for  the  estab- 
lishment of  harbor  lines,  survey,  platting  and  appraisal  of 
shore  lands  of  the  first  class  of  Lakes  Washington  and  Union, 
in  King  County,  Washington,  the  sale  and  disposition  of  said 
shore  lands,  the  creation  of  the  Alaskar Yukon-Pacific  Exposi- 
tion Fund,  and  declaring  an  emergency." 

It  is  also  alleged  that  it  is  provided  in  said  act  that  ''the 
board  of  state  land  commissioners  of  the  State  of  Washington, 
acting  as  a  board  of  harbor  Ime  commission  or  other  proper 
official  capacity  as  now  authorized  by  law,  shall,  as  soon  as  pos- 
sible after  the  passage  of  this  act,  and  not  later  than  July  1, 
1907,  establish  harbor  lines  in  Lakes  Washington  and  Union, 
situated  in  King  County,  Washington,  in  front  of  the  city  of 
Seattle,  .  .  .  ;  and  to  survey,  plat,  examine  and  appraise 
such  shore  lands  of  the  first  class  within  or  in  front  of  the 


74  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

limits  of  the  said  city  of  Seattle  .  .  .  After  the  establish- 
ment of  said  harbor  lines  and  the  survey,  platting,  examination 
and  appraisal,  as  aforesaid,  a  copy  of  the  plat  and  record 
thereof,  as  required  by  existing  law,  shall  be  deposited  with  the 
county  auditor  of  King  County,  Washington,  and  another 
copy  shall  be  delivered  to  the  commissioner  of  public  lands  of 
this  State,  and  the  same  shall  be  filed  and  safely  kept  as  re- 
quired by  law." 

It  is  further  alleged  that  the  board  has  proceeded  to  survey 
the  lands  belonging  to  the  appellants  respectively,  and  has  in- 
cluded therein  those  portions  which  he  between  the  line  of 
ordinary  high  water  and  the  line  of  low  water  out  into  the 
lakes  to  a  point  where  the  depth  is  thirty  feet,  and  that  the 
plat  thereof  covers  the  property  of  the  appellees. 

It  is  alleged  that  John  J.  McGilvra,  the  original  patentee  in 
the  McGilvra  case,  "  did  erect  and  construct  out  into  the  waters 
of  Lake  Washington  a  wharf  in  front  of  a  portion"  of  the 
patented  lands,  which  was  erected  and  maintained  at  great 
expense  to  facilitate  the  commerce  of  the  lake,  and  which  was 
for  many  years  the  only  wharf  within  the  limits  of  Seattle. 
It  is  alleged  that  the  wharf  is  still  owned  by  the  appellants  in 
the  case,  and  still  used  for  the  purpose  above  mentioned,  and 
is,  with  the  privilege  connected  therewith  and  appurtenant 
thereto,  of  greater  value  than  $10,000. 

It  is  also  alleged  in  the  Bressler  case  that  the  owners  of  the 
lands  alleged  therein  to  have  been  patented  constructed  a 
dock  or  wharf  into  the  waters  of  Lake  Union,  for  a  landing 
place  for  passengers  and  freight,  and  it  was  and  is  used  for  that 
purpose,  and  that  the  appellant  Bressler  has,  since  his  owner- 
ship of  the  property,  further  improved  the  same,  by  covering 
nearly  all  of  it  with  buildings,  which  have  long  been  occupied 
by  his  tenants  for  the  purpose  of  trade  and  manufacture,  and 
the  value  of  the  wharf  and  buildings  exceeds  $12,000,  and  the 
value  of  the  property  $75,000. 

It  is  alleged,  in  both  cases,  that  by  the  constitutional  pro- 
vision above  mentioned  the  State  "seeks  to  confiscate  without 


McGILVRA  r.  ROSS.  75 

215  U.  S.  Statement  of  the  Case. 

compensation,  and  if  declared  valid  and  of  effect  will  confiscate 
without  compensation  the  rights  of''  appellants  in  and  to  all 
the  rights  hereinbefore  set  forth  as  vested  for  a  period  of 
twenty-four  years  before  the  admission  of  the  State,  and  will 
divest  appellants  of  their  said  property  rights  without  com- 
pensation and  without  due  process  of  law,  all  of  which,  it  ''  is 
alleged,  is  contrary  to  the  protection  guaranteed  to  the  citizens 
of  the  United  States  by  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States." 

And  as  to  the  acts  and  threatened  acts  of  the  appellees  above 
described  and  other  acts  which  they  threaten  in  pursuance  of 
the  statute  of  February  4, 1907,  it  is  alleged  that  they  will  cast 
a  cloud  upon  the  respective  rights,  titles  and  properties  of  the 
appellants  in  the  respective  cases,  to  their  damage  respectively 
in  the  sums  of  $5,000,  $25,000  and  $100,000,  and  that  they 
will  take  and  convert  into  money  the  proj)erties  of  the  respec- 
tive appellants  without  compensation  and  without  due  process 
of  law,  and  that  appellants  have  no  plain,  speedy  or  adequate 
remedy  at  law. 

Injunctions  were  prayed,  provisional  and  perpetual,  also 
general  relief. 

Demurrers  were  filed  to  the  bills  on  the  ground  that  they 
exhibited  no  equities  in  the  respective  complaints  and  on  the 
ground  that  the  court  was  "without  jurisdiction  of  the  parties 
or  the  subject  matter." 

Alfred  J.  Pritchard  and  others  were  allowed  to  intervene  in 
the  McGUvra  case  and  Frank  T.  Hunter  and  others  were  al- 
lowed to  intervene  in  the  Bressler  case  as  parties  complainant. 

The  Circuit  Court  did  not  pass  on  the  question  of  jurisdic- 
tion, saying,  on  page  401 : "  As  the  bills  fully  disclose  the  extent 
of  the  compldnants'  claims  to  relief,  it  results  that  the  de- 
murrers must  be  sustained  and  the  suits  dismissed  for  want  of 
equity."  161  Fed.  Rep.  398.  A  decree  was  entered  accord- 
ingly. The  Circuit  Court  of  Appeals,  however,  discussed  the 
question  of  jurisdiction,  and  said,  on  page  608: 

"The  Circuit  Court  was,  therefore,  without  jurisdiction  in 


76  OCTOBER  TERM,  1909. 

Opinion  of  the  Covirt.  215  U.  S. 

these  cases  and  the  bills  of  complaint  were  properly  dismissed. 
The  views  here  expressed  would  require  this  court  to  affirm 
the  decrees  of  the  Circuit  Court  dismissing  the  bills  of  com- 
plaint if  the  cases  were  considered  on  their  merits. 

^^The  decree  of  the  Grcuit  Court  is  affirmed."  164  Fed. 
Rep.  604. 

Mr,  Charles  K,  Jenner  and  Mr.  0.  C.  McGilvra  for  appel- 
lant. 

Mr.  Walter  P.  Bell,  Attorney  General  for  the  State  of  Wash- 
ington, and  Mr.  John  W.  Roberts  for  appellee. 

Mr.  Justice  McKenna,  after  stating  the  case  as  above,  de- 
livered the  opinion  of  the  court. 

The  appellants  are  citizens  of  the  State  of  Washington,  and 
rely,  therefore,  upon  the  existence  of  Federal  questions  to 
sustain  the  jurisdiction  of  the  Circuit  Court.  These  questions 
are  asserted  to  be  (and  we  give  the  language  of  counsel) :  "  (1) 
the  validity  and  effect  of  the  several  patents  of  the  United 
States  in  respect  to  the  claim  of  ownership  thereunder,  as  set 
forth  in  the  bill  of  complaint ;  (2)  the  invocation  of  the  protec- 
tion of  the  Fourteenth  Amendment  of  the  Federal  Constitu- 
tion by  these  plaintiffs  against  the  threatened  taking  of  their 
property''  by  "the  several  acts  of  the  legislature  of  the  State 
of  Washington  and  the  procedure  directed  thereunder." 

It  is  manifest  that  the  first  is  the  primary  question.  If  the 
appellants  did  not  derive  the  rights  contended  for  by  the 
patents,  they  have  no  rights  to  be  impaired,  even  assuming,  as 
we  have  assumed  in  this  discussion,  that  the  action  of  the 
State  has  proceeded  far  enough  to  be  a  trespass  upon  or  an  im- 
pairment of  them.  But  whether  such  rights  passed  involves 
the  construction  of  the  acts  of  Congress  under  which  the 
patents  issued  and  necessarily  of  the  effect  of  the  patents,  and 
presents  a  Federal  question,  if  prior  decisions  have  not  de- 


McGILVRA  V.  ROSS.  77 

215  U.  S.  Opinion  of  the  Court. 

fined  such  rights  and  removed  them  from  controversy.  This 
is  contended  by  appellees,  and  Shivdy  v.  Boiolby,  152  U.  S.  1, 
is  cited.  And,  as  we  have  seen,  the  Circuit  Court  of  Appeals 
took  this  view.  Appellants  attack  it  and  contend  that  the 
facts  of  Shivdy  v.  Bowlby  are  so  far  dififerient  from  those  in  the 
case  at  bar  as  to  make  that  case  inconclusive  of  the  questions 
presented  in  the  latter.  A  determination  of  the  scope  of 
Shivdy  v.  Bowlby  becomes  necessary.  The  controversy  in 
that  case  was  between  a  title  by  United  States  patent  under 
the  Oregon  Donation  Land  Law,  so  called,  being  the  act  of 
Congress,  September  27,  1850  (and  the  same  law  under  which 
the  title  in  the  Bressler  case  is  derived),  to  lands  bounded  by 
the  Columbia  River,  and  a  title  derived  under  the  act  of  the 
State  of  Oregon,  entitled  "  An  act  to  provide  for  the  sale  of  tide 
and  overflowed  lands  on  the  seashore  and  coast'*  to  lands  be- 
low high-water  mark  on  that  river.  The  issue,  therefore,  was 
accurately  presented  between  a  title  under  a  patent  of  the 
Uhited  States  and  one  conveyed  by  a  State  in  the  exercise  of 
its  dominion  over  lands  below  high-water  mark.  The  issue 
in  the  case  at  bar  is  exactly  the  same.  But  a  distinction  is 
pointed  out,  and  on  that  distinction  appellants'  contentions 
and  argiunents  are  based.  The  Shivdy  case  was  concerned 
with  shore  lands  within  the  ebb  and  flow  of  the  tide.  In  the 
case  at  bar  the  lands  border  on  navigable  waters,  but  not  on 
tidal  waters.  The  Shivdy  case,  it  is  therefore  contended,  as  we 
have  said,  is  not  applicable,  for,  it  is  said,  that  whenever  the 
"  court  in  deciding  said  cause  used  the  term '  navigable  waters ' 
in  discussing  the  case  then  before  it  said  term  meant  tidal 
waters,  for  the  question  of  rights  upon  tidal  waters  was  the 
only  question  therein  presented." 

The  argument  to  sustain  the  contention  is  not  confined  to  an 
analysis  of  the  case,  but  goes  beyond,  and  by  the  citation  of 
many  cases  seeks  to  determine  the  riparian  rights  of  appellants 
by  the  common  law  test  of  navigability,  to  wit,  the  ebb  and 
flow  of  the  tide.  The  contention  is  that  when  the  patents  were 
issued  to  the  respective  appellants  'Hhe  common  law  of  Eng- 


78  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

land  in  rdation  to  riparian  ownership  was  in  full  force  in  the 
Territory  of  Washington,  and,  in  the  absence  of  statutes  passed 
by  the  United  States,  changing,  modifjring  or  varying  the 
common  law  in  regard  to  grants  of  land,"  such  grants  carried, 
unless  there  was  an  express  reservation,  as  "appurtenances 
thereunto  belonging"  such  riparian  ownership,  and  from  this 
it  is  contended  that  appellants  "received  with  their  several 
patents  a  grant  in  fee  to  the  waters  "  of  Lakes  Union  and  Wash- 
ington, respectively,  "in  front  of  the  several  tracts  of  land  to 
the  middle  of  said  lakes."  We  will  not  review  the  reasoning 
by  which  this  contention  is  attempted  to  be  supported.  It  is 
enough  to  say  that  the  test  of  navigability  of  waters  insisted 
on  has  had  no  place  in  American  jurisprudence  since  the  de- 
cision in  the  case  of  The  Propeller  Genesee  Chief  v.  Fitzhugh, 
12  How.  443,  and  is  therefore  no  test  of  riparian  ownership. 
This  is  the  effect  of  Shivdy  v.  Bowlby,  152  U.  S.,  supra.  The 
whole  doctrine  is  there  displayed,  and  the  court  declared  (152 
U.  S.,  p.  1 1) ,  that  on  account  of  the  "  diversity  of  view  as  to  the 
scope  and  efifect  of  the  previous  decisions  of  this  court  upon  the 
subject  of  public  and  private  rights  in  lands  below  high-water 
mark  of  navigable  waters,"  it  appeared  "to  be  a  fit  occasion 
for  a  full  review  of  those  decisions  and  a  consideration  of  other 
authorities  upon  the  subject."  And  the  term  "navigable 
waters,"  as  there  used,  meant  waters  which  were  navigable  in 
fact.  The  definition  was  not  inadvertent  or  unnecessary.  It 
was  that  to  which  the  reasoning  conducted  and  which  became 
the  test  of  the  dominion  of  the  national  and  state  govern- 
ments over  shore  lands  and  the  rights  which  they  had  or  could 
convey.  Hence  this  conclusion  by  the  court  (p.  57):  "The 
title  and  rights  of  riparian  or  littoral  proprietors  in  the  soil 
below  high-water  mark,  therefore,  are  governed  by  the  laws  of 
the  several  States,  subject  to  the  rights  granted  to  the  United 
States  by  the  Constitution."  It  was  observed  that  the  United 
States,  while  it  held  the  country  as  a  Territory,  having  all  the 
powers  of  national  and  of  municipal  government,  might  have 
granted  for  appropriate  purposes  rights  and  titles  below  high- 


McGILVRA  t?.  ROSS.  79 

215  U.  S.  Opinion  of  the  Court. 

water  mark.  See  United  States  v.  Winans,  198  U.  S.  371; 
Prosser  v.  Northern  Pacific  R.  JR.,  152  U.  S.  59.  But,  it  was 
said,  that  they  had  never  done  so  by  general  laws,  but  had  con- 
sidered it  "as  most  in  accordance  with  the  interest  of  the 
people  and  with  the  object  for  which  the  Territories  were  ac- 
quired of  leaving  the  administration  and  disposition  of  the 
sovereign  rights  in  navigable  waters,  and  in  the  soil  under 
them,  to  the  control  of  the  States  respectively,  when  organized 
and  admitted  into  the  Union."  This  policy,  it  was  remarked, 
as  "to  navigable  waters  and  the  soils  under  them,  whether 
within  or  above  the  ebb  and  flow  of  the  tide,"  has  been  "con- 
stantly acted  upon."  And  hence  it  was  further  said:  "Grants 
by  Congress  of  portions  of  the  public  lands  within  a  Territory 
to  settlers  thereon,  though  bordering  on  or  bounded  by  naviga- 
ble waters,  convey,  of  their  own  force,  no  title  or  right  below 
high-water  mark,  and  do  not  impair  the  title  and  dominion  of 
the  future  State  when  created,  but  leave  the  question  of  the 
use  of  the  shores  by  the  owners  of  uplands  to  the  sovereign 
control  of  each  State,  subject  only  to  the  rights  vested  by  the 
Constitution  in  the  United  States."  The  conclusion  neces- 
sarily follows,  as  expressed  by  the  court,  that  the  State  may 
dispose  of  its  lands  under  navigable  waters  "free  from  any 
easement  of  the  upland  proprietor." 

Joy  V.  St.  Louis,  201  U.  S.  332,  is  to  the  same  effect.  See 
also  Scranton  v.  Wheeler,  179  U.  S.  141,  190;  United  States  v. 
Mission  Rock  Co,,  189  U.  S.  391 ;  Kansas  v.  Colorado,  206  U.  S. 
46-93.  In  the  latter  case  it  was  said,  as  a  deduction  from 
many  previous  cases,  including  Shvody  v.  Bowlby,  "that  each 
State  has  full  jurisdiction  over  the  lands  within  its  borders,  in- 
cluding the  beds  of  streams  and  other  waters."  Barney  v. 
Keokuk,  94  U.  S.  324,  338,  was  quoted  from  as  follows:  "And 
since  this  court,  in  the  case  of  The  Genesee  Chief,  12  How.  443, 
has  declared  that  the  Great  Lakes  and  other  navigable  waters 
of  the  country,  above  as  well  as  below  the  flow  of  the  tide,  are, 
in  the  strictest  sense,  entitled  to  the  denomination  of  navigable 
waters  and  amenable  to  the  admiralty  jurisdiction,  there  seems 


80  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

to  be  no  sound  reason  for  adhering  to  the  old  rule  as  to  the 
proprietorship  of  the  beds  and  shores  of  such  waters.  It 
properly  belongs  to  the  States  by  their  inherent  sovereignty, 
and  the  United  States  has  wisely  abstained  from  extending 
(if  it  could  extend)  its  survey  and  grants  beyond  the  limits  of 
high  water." 

It  follows  from  these  views  that  the  Circuit  Court  of  Ap- 
peals rightly  decided  that  the  questions  presented  by  the  bill 
are  no  longer  open  to  discussion,  and  that  the  Circuit  Court 
was  without  jurisdiction.  But  the  Circuit  Court  of  Appeals, 
overlooking  the  fact  that  the  decree  was  not  of  dismissal 
simply,  but  on  the  merits,  affirmed  it.  To  correct  this  inadver- 
tence the  decree  of  the  Circuit  Court  of  Appeals  must  be  re- 
versed and  the  cause  remanded  to  the  Circuit  Court  with  di- 
rections to  set  aside  the  decree  on  the  merits  and  sustain  the 
demurrer  for  want  of  jurisdiction,  and  on  that  ground  dismiss 
the  suits.  This  will  enable  appellants  to  litigate  in  the  state 
courts  whatever  riparian  rights  they  may  have  under  the  laws 
of  the  State  and  the  constitutional  provisions  hereinbefore  set 

out. 

So  ordered. 

Mr.  Justice  Holmes  concurs  in  the  result. 


SYLVESTER  v,  THE  STATE  OF  WASHINGTON. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  WASH- 
INGTON. 

No.  40.    Argued  November  4,  6,  1909.— Decided  November  15, 1909. 

Where  in  the  state  court  plaintiff  in  error  set  up  the  invalidity  of  a  deed 
under  the  provisions  of  an  act  of  Congress  and  judgment  could  not  be 
rendered  against  him  without  sustaining  the  deed  this  court  has 
jurisdiction  under  §  709,  Rev.  Stat.  Anderson  v.  Carkins,  135  U.  S. 
483;  NiUt  v.  Knvt,  200  U.  S.  12. 


SYLVESTER  t;.  WASHINGTON.  81 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

Where  CJongiess  appropriates  for  a  Territory  to  erect  buildings  the 
implication  is  that  the  Territory  must  control  the  land  on  which  the 
.  buildings  are  to  be  erected,  and  where  land  is  cheap  the  implied  au- 
thority will  not  be  limited  to  merely  leasing  the  land.  Qtia^e  whether 
an  organized  Territory  has  not  power  to  purchase  land  for  a  seat 
of  govomment. 

Under  the  Oregon  Donation  Act  of  September  27,  1850,  c.  76,  9  Stat. 
496,  as  amended  July  17,  1854,  c.  84,  §  2,  10  Stat.  305,  no  condition 
except  residence  for  four  years  was  necessary  to  validate  a  sale  by  a 
settler  before  a  patent. 

On  a  writ  of  error  where  the  rights  of  the  parties  depend  upon  the 
validity  of  a  deed  under  an  act  of  Congress  this  court  is  confined  to 
the  question  of  validity  under  the  statute  and  the  effect  of  the  deed, 
if  valid,  upon  the  later  rights  and  acquisitions  of  the  grantor  is  a 
matter  of  local  law;  and,  in  this  case,  the  court  will  not  disturb  the 
assumption  of  the  state  court  that  a  settler  giving  a  valid  deed  be- 
fore patent  perfected  the  title  and  obtained  the  patent  on  behalf  of 
his  grantee  or  else  that  the  patent  enured  to  the  benefit  of  the 
grantee. 

46  Washington,  585,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  George  Marvin  Savage  for  plaintiff  in  error: 
The  instrument  under  which  defendant  claims  title  was 
void  because  the  purported  grantors  had  nothing  but  a  "  squat- 
ter's right."  Under  the  Oregon  Donation  Law  neither  legal  nor 
equitable  title  vests  in  the  settler  before  his  full  compliance 
with  all  the  requirements  of  said  act.  Hall  v.  Riissdl,  101 
U.  S.  509;  Vance  v.  Burbank,  101  U.  S.  514;  Ore.  &  Cd,  R.  R. 
Co.  v.  United  States,  190  U.  S.  195;  United  States  v.  Ore.  &  Cat. 
R.  Co.,  133  Fed.  Rep.  954;  Cutting  v.  Cutting,  6  Fed.  Rep. 
262;  Henry  v.  Land  Co.,  83  Fed.  Rep.  748;  Hershberger  v. 
BleweU,  55  Fed.  Rep.  177;  Traver  v.  Tribou^  15  Fed.  Rep.  31. 

The  Oregon  state  courts  now  hold  to  the  doctrine  of  full 
compliance  being  necessary,  having  overruled  their  former  de- 
cisions in  the  recent  case  of  Quinn  v.  Ladd,  37  Orpgon,  261 
(59  Pac.  Rep.  459);  BuUene  v.  Garrison,  1  Wash.  Ter.  590; 
Maynard  v.  HiU,  1  Wash.  Ter.  327;  McSorley  v.  Hill,  27  Pac. 

VOL.  ccxv — 6 


82  OCTOBER  TERM,  1909. 

Argument  for  PlaintifF  in  Eiror.  215  U.  S. 

Rep.  554;  5.  C,  2  Wash.  Ter.  638;  Maynard  v.  Valentine,  2 
Wash.  Ter.  18.    The  decisions  of  the  Land  Department  also 
support  contentions.   AUen  Claim,  7  L.  D.  547;  Vetch  v.  Park 
14  L.  D.  490;  Vamer  Claim,  22  L.  D.  569;  Stone  v.  Conndl 
Heirs,  23  L.  D.  166. 

Under  the  act  of  July  26,  1894,  mere  residence  for  the  re- 
quired period  is  not  suflBicient.  The  settler  must  perfect  his 
inchoate  rights  by  conforming  to  all  the  requirements  of  the 
act.  Congress,  recognizing  this,  and  desiring  to  protect  dila- 
tory settlers,  on  July  26,  1894,  passed  an  act  extending  the 
time  within  which  final  proof  could  be  made  under  the  Oregon 
Donation  Act,  28  Stat.  122,  which  has  been  construed  to  be 
intended  for  the  relief  of  those  who  had  resided  continuously 
upon  and  cultivated  the  lands  specified  in  the  original  donation 
notifications,  but  had  through  mistake  or  negligence  omitted 
to  make  and  file  their  final  proofs  and  fully  establish  their 
rights  to  such  donations.  Oregon  &  C.  R.  R,  Co.  v.  United 
States,  190  U.  S.  195. 

See  circular  of  the  Department  of  the  Interior,  April  8 
1895,  20  L.  D.  290. 

The  rule  that  all  the  requirements  of  the  granting  pro- 
visions of  the  act  must  be  comphed  with  by  the  settler  before 
title  vests  is  not  confined  to  the  Oregon  Donation  Act.  It  is 
the  uniform  ruling  of  the  courts  upon  the  land  laws.  McCune 
V.  Es^,  118  Fed.  Rep.  280;  aff'd  199  U.  S.  388. 

A  homesteader  has  not  legal  title  before  final  proof.  United 
States  V,  Turner,  54  Fed.  Rep.  228. 

Decisions  of  United  States  courts  control.  Decisions  of 
state  courts  are  not  binding  in  cases  involving  the  validity  of 
conveyances  of  the  public  lands  of  the  United  States,  as  the 
iiuestions  when  title  passed,  and  whether  it  passed,  and  to 
whom,  depend  on  the  laws  of  the  United  States.  McCune  v. 
ff.s\v%  199  U.  S.  390;  Anderson  v.  Carkins,  135  U.  S.  486;  WHn 
cox  v,  Jackson,  13  Pet.  517;  Proebstel  v,  Hague,  15  Fed.  Rep. 
583;  Cunninghamv.  Krutz,  83  Pac-Rep.  109;  S.  C.,41  Wash. 
190. 


SYLVESTER  v.  WASHINGTON.  83 

215  U.  S.  Opinion  of  the  Court. 

The  Territory  was  guilty  of  laches.  Sylvester  and  wife  con- 
tinued to  reside  on  his  claim,  after  making  the  first  deed,  until 
after  the  patent;  residence  and  cultivation  were  only  necessary 
upon  some  part  of  the  claim.  United  States  v.  Tichenor,  12  Fed. 
Rep.  426. 

The  Territory,  with  full  knowledge,  permitted  him  to  prove 
up  and  estabUsh  his  legal  title  to  his  full  claim,  and  must  be 
held  to  have  waived  any  right  beyond  a  mere  possessory  right, 
subordinate  to  his  high  title.    HaU  v.  Russell^  101  U.  S.  512. 

The  state  court  based  its  decision  upon  the  cases  of  Barney 
V.  Dolph,  97  U.  S.  652;  Brazee  v.  Schofield,  124  U.  S.  495, 
and  Roeder  v.  Fouz,  all  of  which  can  be  distinguished  from 
this  case. 

The  deed  was  void  because  the  grantee  named  therein  was 
not  authorized  by  law  to  take  title  to  the  land. 

The  Territory  of  Washington,  having  no  attributes  to  sover- 
eignty, had  no  power  to  acquire  land.  Its  organic  act  gave  no 
power  to  acquire  title  to  land.  It  was  not  authorized  or  di- 
rected by  act  of  Congress  to  purchase,  or  take  title.  The  land 
was  pubUc  land  of  the  United  States.  The  appropriation  for 
public  buildings  did  not  give  the  Territory  power  to  purchase 
land.  Koch  v.  Vanderhoff,  9  Atl.  Rep.  772;  19  Op.  Atty.  Genl. 
34,  79;  §3736,  Rev.  Stat.;  United  States  v.  Tichenor,  12  Fed. 
Rep.  421. 

Mr.  W.  P,  Bell,  Attorney  General  of  the  State  of  Washing- 
ton, with  whom  Mr.  W.  V.  Tanner,  Mr.  W.  F.  MagiU  and  Mr. 
George  A .  Lee  were  on  the  brief,  for  defendant  in  error. 

Mb.  Justice  Holmes  deUvered  the  opinion  of  the  court. 

This  is  an  action  brought  by  the  heirs  of  one  Edmund 
Sylvester  to  recover  a  parcel  of  land  patented  to  him  by  the 
United  States,  under  the  Oregon  Donation  Act  of  Septem- 
ber 27,  1850,  c.  76,  9  Stat.  496,  and  the  amendments  to  the 
same.    The  State  took  up  the  defense  and  alleged  that  Sylves- 


84  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

ter  settled  on  the  land  on  February  1, 1850,  resided  there  con- 
tinuously for  more  than  four  years,  and  then  with  his  wife,  the 
plaintiff  Clara  Sylvester,  by  deed  of  bargain  and  sale  without 
covenants,  conveyed  the  land  to  the  Territory  of  Washington 
on  January  18,  1855.  This  conveyance  was  made  in  accord- 
ance with  a  Territorial  Act  of  January  9, 1855,  to  provide  for 
the  seat  of  government.  The  State  alleged  that  it  and  the  Ter- 
ritory, its  predecessor,  have  been  in  open  and  adverse  posses- 
sion ever  since,  and  relied  upon  the  statute  of  limitations  as 
well  as  upon  the  deed.  To  this  defense  there  is  a  very  verbose 
reply  to  the  following  effect. 

The  grantor  offered  the  land  to  the  Territory  as  a  gift  so  long 
as  it  should  be  used  as  a  site  for  the  seat  of  government  and  the 
territorial  capitol  building  erected  and  maintained  thereon. 
The  offer  was  accepted  and  an  act  was  passed  establishing  the 
seat  of  government  there,  provided  the  owners  or  claimants 
gave  a  release  of  the  land.  January  9,  1855.  Thereupon 
Sylvester  made  the  above  mentioned  deed,  which  the  plain- 
tiffs prefer  to  call  a  release — or  a  quitclaim,  as  it  was  called  in 
another  territorial  act  of  a  few  days  later,  January  28,  1855, 
accepting  the  deed.  At  the  time  of  Sylvester's  conveyance  he 
was  a  claimant,  but  had  not  compUed  with  the  requirements 
of  the  Donation  Act  in  other  respects  than  the  occupation  for 
more  than  four  years.  On  this  ground  it  is  allied  that  his 
deed  was  void.  On  July  1, 1858|  he  made  final  proof;  there  was 
no  adverse  claim,  and  on  May  3,  1860,  a  patent  was  issued  to 
him.  He  died  in  1887,  and  after  the  State  of  Washington  had 
been  admitted  to  the  Union,  at  its  request,  the  plaintiffs  exe- 
cuted another  deed  of  the  premises — but  this  deed  purported 
to  be  made  ''  upon  the  express  condition  that  the  tract  shall  be 
and  remain  the  site  of  the  capitol  of  Washington,  and  that  in 
the  event  of  the  location  of  the  capitol  elsewhere  than  upon 
his  tract,  these  presents  shall  be  null  and  void."  As  a  further 
ground  of  recovery,  it  is  alleged  that  the  State  has  ceased  to 
use  the  tract  for  the  seat  of  government.  Finally,  it  is  allied 
that  under  the  act  of  Congress  of  March  2, 1853,  c.  90, 10  Stat. 


SYLVESTER  v,  WASHINGTON.  85 

215  U.  S.  Opinion  of  the  Court. 

172,  organizing  Washington  Territory,  the  Territory  was  not 
authorized  or  permitted  to  acquire  title  to  the  land  in  suit.  It 
is  added  that  the  statute  of  limitations  did  not  run,  because  the 
plaintiffs  could  not  sue  the  Territory  or  State  until  authorized 
to  do  so  by  the  act  of  1895,  c.  95,  p.  188,  for  the  first  time. 

There  was  a  trial  and  judgment  for  the  State,  which  judg- 
ment was  affirmed  by  the  state  Supreme  Court.  46  Washing- 
ton, 585.  The  facts  found  were  substantially  those  set  forth 
in  the  pleadings,  except  that  it  was  held  to  be  proved  that 
Sylvester  filed  his  notification  of  settlement  with  the  Surveyor- 
General  of  Oregon  in  February,  1854,  before  the  date  of  his 
deed  to  the  Territory,  although,  as  has  been  shown,  his  final 
proof  and  his  receipt  of  a  patent  were  after  that  date.  The 
plaintiffs  specially  set  up  the  invalidity  of  his  deed  under  the 
Oregon  Donaticm  Act,  and  the  incapacity  of  the  Territory  to 
accept  it  under  the  act  by  which  it  was  organized  and  claimed 
title  on  these  grounds.  We  may  assimie  that  the  present  writ 
of  error  is  within  the  jurisdiction  of  this  court.  Anderson  v. 
Carkins,  135  U.  S.  483;  Nutt  v.  Knut,  200  U.  S.  12.  But  on 
the  merits  we  are  of  opinion  that  the  plaintiffs  have  no  case. 

We  see  no  ground  whatever  for  the  doubt  suggested  as  to 
the  power  of  the  Territory  to  accept  the  deed.  If  that  power 
was  not  incident  to  the  organization,  it  was  implied  by  §  13  of 
the  Organic  Act,  as  Congress  granted  five  thousand  dollars 
'  for  the  erection  of  suitable  buildings  at  the  seat  of  govern- 
ment.' For  that  purpose  it  was  necessary  that  the  Territory 
should  control  the  land,  and  especially  in  a  region  where  land 
was  so  cheap  as  it  was  in  those  days  the  implied  authority  can- 
not be  confined  to  the  taking  of  a  lease. 

On  the  other  point  it  was  said  that  the  settler  acquired  no 
rights  until  he  not  only  had  cultivated  the  land  for  four  years, 
but  had  otherwise  conformed  to  the  provisions  of  the  Oregon 
Donation  Act.  Section  4.  Whereas,  at  least,  he  had  not  made 
final  proof.  Oregon  &  California  R,  R,  v.  United  StateSy  No.  3, 
190  U.  S.  186, 195.  But  the  question  in  this  case  is  not  whether 
Sylvester  had  acquired  rights  that  the  Government  could  not 


86  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

impair,  or  in  fact  preserved  as  against  another  claimant,  as  in 
East  Central  Eureka  Mining  Co.  v.  Central  Eureka  Mining  Co,, 
204  U.  S.  266,  270,  271,  but  it  is  between  his  representatives 
and  his  grantee.  That  Sylvester  had  some  rights  cannot  be 
disputed,  and  is  recognized  by  §  8  of  the  act  ("  all  the  rights  of 
the  deceased'')-  He  was  in  possession  and  had  taken  lawful 
steps  toward  getting  the  title.  Those  rights  he  could  convey 
unless  prohibited  by  law.  But  by  the  amending  act  of  July  17, 
1854,  c.  84,  §  2, 10  Stat.  305,  the  proviso  in  §  4  of  the  Donation 
Act  making  contracts  for  the  sale  of  the  lands  before  patent 
void  was  repealed,  ''Provided,  That  no  sale  shall  be  deemed 
valid,  unless  the  vendor  shall  have  resided  four  years  upon  the 
land."  As  this  proviso  attached  no  condition  except  residence 
for  four  years  it  would  be  more  than  a  harsh  construction  to 
hold  that  the  validity  of  the  deed  still  depended  upon  the  ful- 
fillment of  the  other  requirements  for  a  perfect  right.  We  are 
of  opinion  that  the  deed  was  valid,  and  thus  the  question  is 
narrowed  to  the  effect  of  the  conveyance  upon  the  title  sub- 
sequently given  to  Sylvester  by  the  patent  of  the  United 
States.    See  Brazee  v.  Schofield,  124  U.  S.  495. 

But  the  questions  that  come  before  this  court  are  confined 
to  the  rights  of  the  parties  under  the  statutes  of  the  United 
States,  and  when  it  is  decided  that  Sylvester's  deed  was  valid 
under  these  statutes,  its  efifect  upon  his  later  acts  and  acquisi- 
tions would  seem  to  be  a  matter  of  local  law.  If  the  state 
court  assumed,  as  it  seems  to  have  assumed,  that  Sylvester's 
subsequent  making  of  final  proof  was  to  be  taken  to  have  been 
done  on  behalf  of  his  grantee,  and  thus  to  have  perfected  its 
equitable  right  to  the  land,  it  is  enough  to  say  that  we  see  no 
ground  for  disturbing  the  assumption.  See  Nixon  v.  Carco,  28 
Mississippi,  414.  If  the  state  Supreme  Court  concurred  with 
the  trial  court  in  holding  an  equitable  title  a  sufficient  answer 
to  the  plaintiff's  claim,  that  is  a  matter  with  which  we  have 
nothing  to  do.  Whether  the  decision  went  on  this  ground  or 
assumed  that  the  legal  title  also  enured  to  the  benefit  of  the 
State  does  not  appear.    If  the  latter  ground  were  adopted  we 


EL  PASO  &  N.  E.  RY.  v.  GUTIERREZ.  87 

215  U.  S.  SyUabuB. 

presume  that  it  could  not  be  because  of  the  form  of  the  deed  in 
the  absence  of  words  expressing  or  implying  warranty,  but 
would  be  peculiar  to  this  class  of  cases.  We  suppose  that,  in 
the  absence  of  a  statute  specially  dealing  with  the  matter, 
either  the  title  would  be  taken  to  relate  back,  or  it  would  be 
held  that  a  permitted  conveyance,  before  the  Government  has 
given  a  legal  title  to  any  one,  made  by  a  person  in  process  of 
acquiring  a  title  in  the  statutory  method,  would  be  taken  to 
have  contemplated  that  the  grantor  should  have  the  benefit 
of  what  was  done  afterwards  to  perfect  it.  Those  propositions 
we  are  not  called  upqn  to  discuss.  See  Landes  v.  Brant,  10 
How.  348;  United  States  v.  Clark,  200  U.  S.  601,  607;  Rev. 
Stat.,  §  2448. 

Other  matters  were  argued,  as,  for  instance,  whether  parol 
evidence  should  have  been  received  to  show  that  the  first  deed 
was  intended  to  be  conditional,  although  absolute  in  form;  the 
effect  of  the  second  deed  and  the  condition  that  it  expressed, 
the  statute  of  limitations  and  so  forth.  But  the  only  questions 
open,  on  the  most  liberal  interpretation,  are  those  that  we  have 
answered,  and  it  follows  without  more  that  the  judgment  must 
be  affirmed. 

Affirmed, 


■4««> 


EL  PASO  &  NORTHEASTERN  RAILWAY  COMPANY  v. 
GUTIERREZ,  ADMINISTRATRIX. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  TEXAS. 
No.  606.    Submitted  October  11,  1909.— Decided  November  15,  1909. 

Where  the  effect  of  the  judgment  of  the  state  court  is  to  deny  the  de- 
fense that  a  statute  of  a  Territory  is  a  bar  to  the  action,  a  claim  of 
Federal  right  is  denied  and  this  court  has  jurisdiction  under  §  709, 
Rev.  Stats.,  to  review  the  judgment.  Atckiaon^  Topeka  &  Santa  Fe 
Ry.  V.  Sowers,  213  U.  S.  56. 

The  power  of  Congress  to  regulate  conunerce  in  the  District  of  Colum- 
bia and  Territories  is  plenary  and  does  not  depend  on  the  commerce 


SS  OCTOBER  TERM.  1909. 

A;f:ua>  z.\  i  r  T^MmxiB  in  Ekror.  215  U.  S. 

dause,  aod  m  sumte  regulatiiig  sodi  commene  neoeaBarily  super- 
sedflB  m  territoiul  statute  on  the  sune  subjecC 

An  met  of  Coogreas  may  be  unconsdnitioitti  as  measured  by  the  oom- 
meree  clause,  aod  coDstitutkNial  as  meapurpd  by  the  power  to  govern 
the  District  of  Cohimbia  aod  the  Tcnitories.  and  the  test  of  separ^- 
bifity  is  whether  Congress  would  have  enacted  the  l^;tsiation  ex- 
duaively  for  the  District  and  the  Territories. 

The  rule  that  the  court  must  sustain  an  act  of  Congress  as  constitutional 
unle^  there  is  no  doubt  as  to  its  unconstitutionality  also  requires  the 
court  to  sust£un  the  act  in  so  far  as  it  is  possible  to  sustain  it. 

Tliis  court  did  not  in  its  decision  of  the  Employers*  Liability  CaseSf  207 
U.  S.  463,  hold  the  act  of  June  11,  1906,  c  3073,  34  Stat.  232,  un- 
constitutional so  far  as  it  related  to  the  District  of  Columbia  and  the 
Territories,  and  expressly  refused  to  interpret  the  act  as  applying 
only  to  such  employes  of  carriers  in  the  District  and  Territories  as 
were  engaged  in  interstate  commerce. 

The  evident  intent  of  Congress  in  enacting  the  Employers'  Liability 
Act  of  June  1 1, 1906,  was  to  enact  the  curative  provisions  of  the  law 
as  applicable  to  the  District  of  Columbia  and  the  Territories  imder 
its  plenary  power  irrespective  of  the  interstate  commerce  feature 
of  the  act,  and  although  unconstitutional  as  to  the  latter  as  held  in 
207  U.  S.  463,  it  is  constitutional  and  paramount  as  to  commerce 
wholly  in  the  District  and  Territories. 

The  Employers'  Liability  Act  of  June  11,  1906,  being  a  constitutional 
regulation  of  conmierce  in  the  District  of  Columbia  and  the  Terri- 
tories necessarily  supersedes  prior  territorial  legislation  on  the  same 
subject  and  non-compliance  by  the  plaintiff  employ^  with  a  pro- 
vision of  a  territorial  statute  (in  this  case  of  New  Mexico)  cannot  be 
pleaded  by  the  defendant  employer  as  a  bar  to  an  action  for  personal 
injuries. 

117  S.  W.  426,  affirmed,  and  Hyde  v.  Southern  Ry.  Co.,  31  App.  D.  C. 
approved. 

The  facts,  which  involve  the  constitutionality  of  the  Em- 
ployers' Liability  Law  of  June  11,  1906,  c.  3073,  34  Stat.  232, 
as  applied  to  the  Territories  of  the  United  States,  are  stated 
in  the  opinion. 

Mr.  W.  C,  Keegin,  Mr.  W.  A.  Hawkins  and  Mr.  John 
Franklin  for  plaintiff  in  error : 
Tliis  court  has  jurisdiction  to  review  the  judgment  of  the 


EL  PASO  A  N.  E.  RY.  v,  GUTIERREZ.  80 

215  IT.  S.  Argument  for  Defendant  in  Error. 

State  court  of  Texas;  the  plaintiff  in  error  as  defendant  below 
asserted  the  unconstitutionality  of  the  Employers'  Liability 
Act  and  that  this  case  was  controlled  by  the  statute  of  New 
Mexico.  The  denial  of  this  claim  was  the  denial  of  a  Federal 
right.  St.  Louis  &c.  Ry.  Co.  v.  Taylor,  210  U.  S.  281,  293; 
lU.  Cent.  R.  R.  Co.  v.  McKendree,  203  U.  S.  514.  The  statute 
of  New  Mexico  has  been  upheld  in  this  court.  A.,  T.  & 
Santa  Fe  Ry.  v.  Sowers,  213  U.  S.  55.  The  Employers'  Lia- 
bility Act  is  void  in  toto.  The  decision  of  this  court  in  207 
U.  S.  463,  forecloses  that  question.  The  statute  is  not  separ- 
able as  nothing  shows  that  Congress  would  have  enacted  it 
exclusively  as  to  the  Territories.  Sprague  v.  Thompson,  118 
U.  S.  90. 

Mr.  F.  6.  Morris  for  defendant  in  error: 

This  court  does  not  have  jurisdiction  of  the  appeal.  The 
New  Mexico  statute  did  not  create  a  right  of  action  but  only 
improved  conditions.  Klinger  v.  Missouri,  13  Wall.  257; 
Eustis  V.  BoUes,  150  U.  S.  361;  Beaupr6  v.  Noyes,  138  U.  S. 
397. 

The  decision  that  the  act  of  Congress  and  not  the  territorial 
statute  controlled  the  case  does  not  deny  full  faith  and  credit 
to  the  territorial  statute.  United  States  v.  Lynch,  137  U.  S. 
280;  Balto.  &  Pot.  R.  R.  Co.  v.  Hopkins,  130  U.  S.  210;  John- 
son  V.  New  York  Life  Ins.  Co.,  187  U.  S.  491;  Smithsonian 
Institution  v.  St.  John,  214  U.  S.  19. 

No  Federal  right  exists  under  a  territorial  statute  in  a  state 
court  which  will  support  a  writ  of  error  from  this  court  other 
than  that  provided  for  by  the  statute  requiring  it  to  be  given 
full  faith  and  credit.  A.,T.&  Santa  Fe  Ry.  v.  Sowers,  213 
U.  S.  55. 

The  Employers'  Liability  Act  is  within  the  power  of  Con- 
gress to  enact  so  far  as  applicable  to  the  District  of  Columbia 
and  the  Territories,  and  that  question  is  not  affected  by  the 
decision  of  this  court  in  207  U.  S.  463,  which  related  only  to 
the  act  as  applicable  to  the  States.    The  provisions  as  to  the 


90  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

District  of  Columbia  and  the  Territories  are  separable  from 
those  as  to  the  States  and  would  have  been  independently 
enacted  by  Congress.  Hyde  v.  Southern  Ry.  Co.,  31  App.  D.  C. 
466;  Vial  v.  Penniman,  103  U.  S.  714;  Diamond  Glue  Co.  v. 
United  States  Glue  Co,,  187  U.  S.  611;  Florida  Cent,  R.  R.  Co. 
y.Schvite,  103  U.S.  118. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

In  this  case  an  action  was  commenced  by  Enedina  Gutierrez, 
as  administratrix  of  the  estate  of  Antonio  Gutierrez,  in  the 
District  Court  of  El  Paso  County,  Texas,  against  the  El  Paso 
and  Northeastern  Railway  Company,  to  recover  damages 
because  of  the  death  of  the  plaintiff's  intestate  by  wrongful 
act  while  engaged  in  the  service  of  the  railway  company,  a 
common  carrier  in  the  Territory  of  New  Mexico,  on  June  22, 
1906.  By  way  of  special  plea  and  answer  the  railway  com- 
pany set  up  a  statute  of  the  Territory  of  New  Mexico,  wherein 
it  is  provided  that  no  actions  for  injuries  inflicting  death 
caused  by  any  person  or  corporation  in  the  Territory  shall 
be  maintained,  unless  the  person  claiming  damages  shall, 
within  ninety  days  after  the  infliction  of  the  injury  complained 
of  and  thirty  days  before  commencing  suit,  serve  upon  the 
defendant  an  affidavit  covering  certain  particulars  as  to  the 
injuries  complained  of,  and  containing  the  names  and  ad- 
dresses of  all  witnesses  of  the  happening  of  the  alleged  acts 
of  negligence.  Suit  must  be  brought  within  one  year,  and  in 
the  District  Court  of  the  Territory  in  and  for  the  county  in 
which  the  injuries  were  received,  or  where  the  injured  person 
resides;  or,  in  a  claim  against  a  corporation,  in  the  coimty  of 
the  Territory  where  the  corporation  has  its  principal  place 
of  business.  This  act  is  set  out  in  full  in  the  marginal  note  to 
the  case  of  Atchison,  Topeka  &  Santa  Fe  Ry,  Co,  v.  SorverSy 
213  U.  S.  55. 

The  special  answer  sets  forth  that  the  accident  happened 
in  the  Territory  of  New  Mexico,  while  the  statute  was  in  full 
force,  and  that  its  terms  and  provisions  were  not  complied  with. 


EL  PASO  A  N.  E.  RY.  v,  GUTIERREZ.  91 

215  U.  S.  Opinion  of  the  Court. 

To  the  special  answer  the  plaintiff  below  interposed  a  de- 
murrer, and  further,  by  way  of  supplemental  petition,  set 
forth  that  the  injuries  complained  of  happened  after  the  pas- 
sage of  the  so-called  Employers'  Liability  Act,  June  11,  1906, 
c.  3073,  34  Stat.  232.  This  act,  the  plaintiff  alleged,  con- 
trolled the  liability  of  the  defendant  in  the  case.  The  District 
Court  sustained  the  demurrer  of  the  plaintiff  to  that  part  of 
the  defendant's  answer  which  set  up  the  territorial  act  of 
New  Mexico,  to  which  ruling  the  railway  company  duly  ex- 
cepted. The  case  then  went  to  trial  to  a  jury  upon  issues 
made  concerning  the  liability  of  the  railway  company  under 
the  Federal  Employers'  Liability  Act  of  June  11,  1906. 
34  Stat.  232.  The  result  was  a  verdict  and  judgment  in  favor 
of  the  plaintiff  against  the  railway  company.  The  case  was 
then  taken  to  the  Court  of  Civil  Appeals  of  Texas,  and  that 
court  held  that  it  would  not  be  governed  by  the  territorial 
statutes,  and  that  the  Employers'  Liability  Act  of  June  11, 
1906,  was  unconstitutional,  upon  the  authority  of  Employers' 
Liability  Cases ^  207  U.  S.  463,  and  certain  cases  in  the  Texas 
Court  of  Appeals.  Upon  rehearing  a  majority  of  the  court 
held  that  the  provisions  of  the  New  Mexico  act  as  to  the 
presentation  of  notice  of  claim  for  damages  was  a  condition 
precedent  to  a  cause  of  action,  and  that  the  trial  court  there- 
fore erred  in  sustaining  plaintiff's  exception  to  that  part  of 
the  defendant's  answer  which  pleaded  the  territorial  act  and 
plaintiff's  failiure  to  present  her  claim  in  accordance  with  it. 
Ill  S.  W.  Rep.  159.  Thereupon  the  defendant  took  the  case 
to  the  Supreme  Court  of  Texas  by  writ  of  error,  and  that  court 
held  that  the  case  was  controlled  by  the  act  of  Congress  known 
as  the  Employers'  Liability  Act,  34  Stat.  232,  and  that  the 
same  was  constitutional,  and  therefore  held  that  the  judgment 
of  the  Court  of  Civil  Appeals  should  be  reversed,  and  the 
original  judgment  of  the  District  Court  affirmed.  117  S.  W. 
Rep.  426.  From  the  judgment  of  the  Supreme  Court  of  the 
State  a  writ  of  error  was  prosecuted  to  this  court. 

Among  other  errors  assigned  is  the  failure  of  the  Supreme 


92  OCTOBER  TERM,  1909. 

Opimon  of  the  Court.  215  U.  S. 

Court  ot  Texas  to  give  e£fect  to  the  defense  setting  up  the 
statute  of  New  Mexico  as  a  full  defense  to  the  action.  While 
the  Supreme  Court  of  Texas  in  its  opinion  conceded  that  if 
the  toritorial  act  of  New  Mexico  alone  controlled  the  action 
the  plainti£f  must  fail  for  non-compliance  with  its  require- 
ments, it  reversed  the  judgment  of  the  Court  of  Civil  Appeals, 
and  aflBrmed  the  judgment  ci  the  District  Court,  because  in 
its  opinion  the  liability  was  controlled  by  the  Employers' 
LialHlity  Act.  The  e£fect  of  this  judgment  of  the  Supreme 
Court  of  Texas  was  to  deny  the  defense  set  up  under  the 
territorial  act  as  a  complete  bar  to  the  action.  The  District 
Court  sustained  the  demurrer  to  the  plea  setting  up  this  act, 
and  thereby  denied  the  rights  specially  set  up  under  that 
statute,  the  Supreme  Court  of  Texas  overruled  the  Court  of 
Qvil  Appeals  and  affirmed  the  judgment  of  the  EKstrict  Court. 
It  thereby  necessarily  adjudicated  the  defense  claimed  under 
the  territorial  act  against  the  railway  company.  If  this  de- 
fense sets  up  a  Federal  right  within  the  meaning  of  §  709  of 
the  Revised  Statutes  of  the  United  States,  then  we  have 
jurisdiction  of  the  case.  Wabash  R,  R.  Co.  v.  Addberi  College 
of  Western  Reserve  UniversUy,  208  U.  S.  38, 44. 

That  the  claim  of  immunity  under  the  territorial  act,  be- 
cause of  the  failure  of  the  plaintiff  in  error  to  comply  with  its 
provisions  as  to  the  affidavit  within  ninety  days,  etc.,  pre- 
sented a  Federal  question  within  the  meaning  of  §  709  of  the 
Revised  Statutes,  was  decided  in  Atchison,  Topeka  &  Santa 
Fe  Ry.  Co.  v.  Sowers,  213  U.  S.  55,  in  which  case  it  was 
held  that  where  suit  was  brought  in  a  state  court  a  claim 
of  defense  under  the  provisions  of  the  New  Mexico  statute 
was  a  claim  of  Federal  right,  which,  when  adversely  adju- 
dicated, gave  jurisdiction  to  this  court  to  review  the  judg- 
ment. 

Coming  to  consider  the  merits:  This  court,  in  Atchison, 
Topeka  d-  Santa  Fe  Ry.  Co.  v.  Sowers,  213  U.  S.,  supra,  held 
that  in  order  to  give  due  faith  and  credit  to  the  territorial 
statute,  under  §  906  of  the  Revised  Statutes  of  the  United 


EL  PASO  &  N.  E.  RY.  v.  GUTIERREZ.  93 

215  U.  S.  Opinion  of  the  Court. 

States,  the  plaintiff  suing  in  a  State  must  show  compliance 
with  the  preliminaries  of  notice  and  demand  as  required  by 
the  territorial  law.  As  the  answer  in  the  present  case  set  up 
non-compliance  with  these  requisites,  and  the  state  court 
sustained  a  demurrer  thereto,  the  judgment  must  be  reversed, 
unless  the  state  court  was  right  in  denying  the  benefit  of  the 
territorial  act  thus  set  up,  because  the  Federal  Employers' 
Liability  Act  superseded  the  New  Mexico  law,  and  is  constitu- 
tional so  far  as  the  Territories  are  concerned. 

In  view  of  the  plenary  power  of  Congress  under  the  Consti- 
tution over  the  Territories  of  the  United  States,  subject  only 
to  certain  limitations  and  prohibitions  not  necessary  to  no- 
tice now,  there  can  be  no  doubt  that  an  act  of  Congress 
undertaking  to  regulate  commerce  in  the  District  of  Columbia 
and  the  Territories  of  the  United  States  would  necessarily 
supersede  the  territorial  law  regulating  the  same  subject. 

Is  the  Federal  Employers'  Liability  Act  of  June  11,  1906, 
unconstitutional  so  far  as  it  relates  to  common  carriers  en- 
gaged in  trade  or  commerce  in  the  Territories  of  the  United 
States?  It  has  been  suggested  that  this  question  is  foreclosed 
by  a  decision  of  this  court  in  the  Employers^  Liability  Cases, 
207  U.  S.  463.  In  that  case  this  court  held  that,  con- 
ceding the  power  of  Congress  to  regulate  the  relations  of 
employer  and  employ^  engaged  in  interstate  commerce,  the 
act  of  June  11, 1906,  c.  3073,  34  Stat.  232,  was  unconstitu- 
tional in  this,  that  in  its  provisions  regulating  interstate 
commerce  Congress  exceeded  its  constitutional  authority  in 
undertaking  to  make  employers  responsible,  not  only  to  em- 
ploy6B  when  engaged  in  interstate  commerce,  but  to  any  of 
its  employ^,  whether  engaged  in  interstate  commerce  or  in 
commerce  wholly  within  a  State.  That  the  unconstitution- 
ality of  the  act,  so  far  as  it  relates  to  the  District  of  Columbia 
and  the  Territories,  was  not  determined  is  evident  from  a 
consideration  of  the  opinion  of  the  court  in  the  case.  In 
answering  the  suggestion  that  the  words  "any  employ^"  in 
the  statute  should  be  so  read  as  to  mean  only  employes  en- 


94  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

gaged  in  interstate  commerce,  Mr.  Justice  White,  delivering 
the  opinion  of  the  court,  said : 

"  But  this  would  require  us  to  write  into  the  statute  words 
of  limitation  and  restriction  not  found  in  it.  But  if  we  could 
bring  ourselves  to  modify  the  statute  by  writing  in  the  words 
suggested  the  result  would  be  to  restrict  the  operation  of  the 
act  as  to  the  District  of  Columbia  and  the  Territories.  We 
say  this  because  immediately  preceding  the  provision  of  the 
act  concerning  carriers  engaged  in  commerce  between  the 
States  and  Territories  is  a  clause  making  it  applicable  to 
'every  common  carrier  engaged  in  trade  or  commerce  in  the 
District  of  Columbia  or  in  any  Territory  of  the  United  States.' 
It  follows,  therefore,  that  common  carriers  in  such  Territories, 
even  although  not  engaged  in  interstate  commerce,  are  by  the 
act  made  liable  to  '  any '  of  their  employes,  as  therein  defined. 
The  legislative  power  of  Congress  over  the  District  of  Columbia 
and  the  Territories  being  plenary  and  not  depending  upon 
the  interstate  conmierce  clause,  it  results  that  the  provision 
as  to  the  District  of  Columbia  and  the  Territories,  if  standing 
alone,  could  not  be  questioned.  Thus  it  would  come  to  pass, 
if  we  could  bring  ourselves  to  modify  the  statute  by  writing 
in  the  words  suggested;  that  is,  by  causing  the  act  to  read 
'any  employ^  when  engaged  in  interstate  commerce,'  we  would 
restrict  the  act  as  to  the  District  of  Columbia  and  the  Terri- 
tories, and  thus  destroy  it  in  an  important  particular.  To 
write  into  the  act  the  qualif3ring  words,  therefore,  would  be 
but  adding  to  its  provisions  in  order  to  save  it  in  one  aspect, 
and  thereby  to  destroy  it  in  another;  that  is,  to  destroy  in 
order  to  save  and  to  save  in  order  to  destroy."  207  U.  S. 
500. 

A  perusal  of  this  portion  of  the  opinion  makes  it  evident 
that  it  was  not  intended  to  hold  the  act  unconstitutional  in 
so  far  as  it  related  to  the  District  of  Columbia  and  the  Terri- 
tories, for  it  is  there  suggested  that  to  interpolate  in  the  act 
the  qualifying  words  contended  for  would  destroy  the  act  in 
respect  to  the  District  of  Columbia  and  the  Territories  by 


EL  PASO  &  N.  E.  RY.  v.  GUTIERREZ.  95 

215  U.  S.  Opinion  of  the  Court. 

limiting  its  operation  in  a  field  where  Congress  had  plenary 
power,  and  did  not  depend  for  its  authority  upon  the  inter- 
state commerce  clause  of  the  Constitution.  The  act  in  ques- 
tion is  set  forth  in  full  in  a  note  to  Employers^  Liability  Cases, 
207  U.  S.  463,  490.  We  are  concerned  in  the  present  case 
with  its  first  section  only.   This  section  reads : 

"That  every  common  carrier  engaged  in  trade  or  commerce 
in  the  District  of  Columbia,  or  in  any  Territory  of  the  United 
States,  or  between  the  several  States,  or  between  any  Terri- 
toiy  and  another,  or  between  any  Territory  or  Territories 
and  any  State  or  States,  or  the  District  of  Columbia,  or  with 
foreign  nations,  or  between  the  District  of  Columbia  and  any 
State  or  States  or  foreign  nations,  shall  be  liable  to  any  of  its 
employes,  or,  in  the  case  of  his  death,  to  his  personal  repre- 
sentative for  the  benefit  of  his  widow  and  children,  if  any ;  if 
none,  then  for  his  parents;  if  none,  then  for  his  next  of  kin 
dependent  upon  him,  for  all  damages  which  may  result  from 
the  negligence  of  any  of  its  officers,  agents  or  employes,  or  by 
reason  of  any  defect  or  any  insufficiency  due  to  its  negUgence 
in  its  cars,  engines,  appliances,  machinery,  track,  roadbed, 
ways  or  works.'' 

A  perusal  of  the  section  makes  it  evident  that  Congress  is 
here  dealing,  first,  with  trade  or  commerce  in  the  District  of 
Columbia  and  the  Territories;  and,  second,  with  interstate 
commerce,  commerce  with  foreign  nations,  and  between  the 
Territories  and  the  States.  As  we  have  already  indicated,  its 
power  to  deal  with  trade  or  commerce  in  the  District  of  Colum- 
bia and  the  Territories  does  not  depend  upon  the  authority  of 
the  interstate  commerce  clause  of  the  Constitution.  Upon 
the  other  hand,  the  regulation  sought  to  be  enacted  as  to 
commerce  between  the  States  and  with  foreign  nations  de- 
pends upon  the  authority  of  Congress  granted  to  it  by  the 
Constitution  to  regulate  commerce  among  the  States  and 
with  foreign  nations.  As  to  the  latter  class,  Congress  was 
dealing  with  a  liabiUty  ordinarily  governed  by  state  statutes, 
or  controlled  by  the  common  law  as  administered  in  the 


96  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

several  States.  The  Federal  power  of  regulation  within  the 
States  is  limited  to  the  right  of  Congress  to  control  transac- 
tions of  interstate  commerce;  it  has  no  authority  to  regulate 
commerce  wholly  of  a  domestic  character.  It  was  because 
Congress  had  exceeded  its  authority  in  attempting  to  regu- 
late the  second  class  of  commerce  named  in  the  statute  that 
this  court  was  constrained  to  hold  the  act  unconstitutional. 
The  act  undertook  to  fix  the  liability  as  to  "any  employ^," 
whether  engaged  in  interstate  commerce  or  not,  and,  in  the 
terms  of  the  act,  had  so  interwoven  and  blended  the  regula- 
tion of  liability  within  the  authority  of  Congress  with  that 
which  was  not  that  the  whole  act  was  held  invalid  in  this 
respect. 

It  is  hardly  necessary  to  repeat  what  this  court  has  often 
affirmed,  that  an  act  of  Congress  is  not  to  be  declared  invalid 
except  for  reasons  so  clear  and  satisfactory  as  to  leave  no 
doubt  of  its  unconstitutionality.  Futhermore,  it  is  the  duty 
of  the  court,  where  it  can  do  so  without  doing  violence  to  the 
terms  of  an  act,  to  construe  it  so  as  to  maintain  its  constitu- 
tionality; and,  whenever  an  act  of  Congress  contains  unob- 
jectionable provisions  separable  from  those  found  to  be 
unconstitutional,  it  is  the  duty  of  this  court  to  so  declare, 
and  to  maintain  the  act  in  so  far  as  it  is  valid.  It  was  held 
in  the  Employers*  Ldability  Cases  that  in  order  to  sustain  the 
act  it  would  be  necessary  to  write  into  its  provisions  words 
which  it  did  not  contain. 

Coming  to  consider  the  statute  in  the  light  of  the  accepted 
rules  of  construction,  we  are  of  opinion  that  the  provisions 
with  reference  to  interstate  commerce,  which  were  declared 
unconstitutional  for  the  reasons  stated,  are  entirely  separable 
from  and  in  nowise  dependent  upon  the  provisions  of  the  act 
regulating  commerce  within  the  District  of  Columbia  and  the 
Territories.  Certainly  these  provisions  could  stand  in  sepa- 
rate acts,  and  the  right  to  regulate  one  class  of  liability  in 
nowise  depends  upon  the  other.  Congress  might  have  regu- 
lated the  subject  by  laws  applying  alone  to  the  Territories, 


. 


EL  PASO  &  N.  E.  RY.  v,  GUTIERREZ.  97 

215  U.  S.  Opinion  of  the  Court. 

and  left  to  the  various  States  the  regulation  of  the  subject- 
matter  within  their  borders,  as  had  been  the  practice  for 
many  years. 

It  remains  to  inquire  whether  it  is  plain  that  Congress 
would  have  enacted  the  legislation  had  the  act  been  limited 
to  the  regulation  of  the  liability  to  employ^  engaged  in 
coDMnerce  within  the  District  of  Columbia  and  the  Territories. 
If  we  are  satisfied  that  it  would  not,  or  that  the  matter  is 
in  such  doubt  that  we  are  unable  to  say  what  Congress 
would  have  done  omitting  the  imconstitutional  feature,  then 
the  statute  must  fall.  Illinois  Central  R.  R.  Co,  v.  McKen- 
dree,  203  U.  S.  514;  Employers'  Liability  Cases,  207  U.  S. 
supra. 

When  we  consider  the  purpose  of  Congress  to  regulate  the 
liability  of  employer  to  employ^,  and  its  evident  intention 
to  change  certain  rules  of  the  common  law  which  theretofore 
prevailed  as  to  the  responsibility  for  negligence  in  the  con- 
duct of  the  business  of  transportation,  we  think  that  it  is 
apparent  that  had  Congress  not  undertaken  to  deal  with 
this  relation  in  the  States  where  it  had  been  regulated  by  local 
law,  it  would  have  dealt  with  the  subject  and  enacted  the 
curative  provisions  of  the  law  applicable  to  the  District  of 
Columbia  and  the  Territories  over  which  its  plenary  power 
gave  it  the  undoubted  right  to  pass  a  controlling  law,  and  to 
make  uniform  regulations  governing  the  subject. 

Bearing  in  mind  the  reluctance  with  which  this  court  inter- 
feres with  the  action  of  a  coordinate  branch  of  the  Govern- 
ment, and  its  duty,  no  less  than  its  disposition,  to  sustain 
the  enactments  of  the  national  legislature,  except  in  clear 
cases  of  invalidity,  we  reach  the  conclusion  that  in  the  aspect 
of  the  act  now  under  consideration  the  Congress  proceeded 
within  its  constitutional  power,  and  with  the  intention  to 
regulate  the  matter  in  the  District  and  Territories,  irrespec- 
tive of  the  interstate  commerce  feature  of  the  act. 

While  not  binding  as  authority  in  this  court,  we  may  note 
that  the  act,  so  far  as  it  relates  to  the  District  of  Columbia, 
VOL.  ccxv — 7 


98  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

was  sustained  in  a  well-considered  opinion  by  the  C!ourt  of 
Appeals  of  the  District  of  Columbia.    Hyde  v.  Southern  Ry. 
Co,,  31  App.  D.  C.  466. 
The  judgment  of  the  Supreme  Court  of  Texas  is 

Affirmed. 


*•■ 


INTERSTATE  COMMERCE  COMMISSION  v,  STICKNEY 
AND  OTHERS,  RECEIVERS  OF  THE  CHICAGO  GREAT 
WESTERN  RAILWAY  COMPANY. 

APPEAL   FROM  THE  CIRCUIT  COURT   OF  THE   UNITED   STATES 

FOR  THE   DISTRICT   OF  MINNESOTA. 

No.  251.     Argued  October  12,  1909.— Decided  November  29, 1909. 

A  carrier  may  charge  and  receive  compensation  for  services  that  it  may 
render,  or  procure  to  be  rendered,  off  its  own  line,  or  outside  of  the 
mere  transportation  thereover. 

Where  the  terminal  charge  is  reasonable  it  cannot  be  condemned,  or  the 
carrier  charging  it  required  to  change  it  because  prior  chai^ges  of 
connecting  carriers  make  the  total  rate  unreasonable. 

In  determining  whether  the  charge  of  a  terminal  company  is  or  is  not 
reasonable  the  fact  that  connecting  carriers  own  the  stock  of  the 
terminal  company  is  immaterial,  nor  does  that  fact  make  the  lines 
of  the  terminal  company  part  of  the  lines  or  property  of  such  connect- 
ing carriers. 

The  inquiry  authorized  by  §  15  of  the  Hepburn  Act  of  June  29,  1906, 
c.  3591,  34  Stat.  584,  relates  to  all  charges  made  by  the  carrier;  and, 
on  such  an  inquiry,  the  carrier  is  entitled  to  have  a  finding  that  a 
particular  charge  is  unreasonable  before  he  is  required  to  change  it. 

Where  the  charge  of  a  terminal  company  is  in  itself  reasonable  the 
wrong  of  a  shipper  by  excessive  aggregate  charges  should  be  cor- 
rected by  proceedings  against  the  connecting  carrier  guilty  of  the 
wrong. 

The  convenience  of  the  commission  or  the  court  is  not  the  measure  of 
justice,  and  will  not  justify  striking  down  a  terminal  charge  when 
the  real  overcharge  is  the  fault  of  a  prior  carrier. 

164  Fed.  Rep.  638,  affirmed. 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.  99 
215  U.  S.  Argument  for  Appellant. 

On  December  10,  1907,  the  Interstate  Commerce  Commis- 
sion entered  an  order  requiring  certain  railroads  running  into 
Chicago  to  cease  and  desist  from  making  a  terminal  charge  of 
two  doDars  per  car  for  the  transportation  of  live  stock  beyond 
the  tracks  of  said  railroads  in  Chicago,  and  for  delivery  thereof 
at  the  Union  Stock  Yards,  and  requiring  them  to  establish  and 
put  in  force  for  said  services  a  charge  of  one  doUar  per  car. 
Compliance  with  this  order  was  postponed  by  the  commission 
until  May  15,  1908.  On  May  7,  1908,  the  appeUees  filed  this 
bill  in  the  Circuit  Court  of  the  United  States  for  the  District  of 
Minnesota,  to  restrain  the  enforcement  of  said  order,  averring 
that  the  actual  cost  to  them  for  such  terminal  services  ex- 
ceeded in  each  instance  the  simi  of  two  dollars  per  car,  and 
that  the  companies  were  making  delivery  at  a  charge  less  than 
such  actual  cost;  that  therefore  the  reduction  of  the  charge  by 
the  commission  to  one  dollar  per  car  was  unreasonable,  oppres- 
sive and  unlawful.  A  hearing  was  had  before  three  judges  of 
the  Eighth  Circuit  and  a  restraining  order  entered  as  prayed 
for  by  the  railroad  companies,  from  which  order  an  appeal  was 
taken  to  this  court. 

Mr.  Wade  H,  EUiSy  Assistant  to  the  Attorney  General,  and 
Mr.  S,  H.  CowaUy  special  attorney,  for  the  appellant : 

For  the  history  of  this  controversy  before  the  courts  and  the 
commission  see  Keenan  v.  Atchison  &  C.  R.  R.  Co.,  64  Fed. 
Rep.  992;  Walker  v.  Keenan,  73  Fed.  Rep.  755;  Reports,  7 1.  C. 
C.  513,  and  555a;  Int.  Com.  Comm.  v.  C,  B.  &  Q.  R.  R. 
Co.,  98  Fed.  Rep.  173;  S.  C,  103  Fed.  Rep.  249;  S.  C,  186 
U.  S.  320;  CatOe  Raisers'  Assn.  v.  C,  B.  &  Q.  R.  R.  Co.,  10 
I.  C.  C.  83,  and  11  I.  C.  C.  296;  Commodity  Rates  St.  Louis  to 
Texas  Paints,  11 1.  C.  C.  238;  CatUe  Raisers'  Assn.  v.  C,  B.  & 
Q.  R.  R.  Co.,  12 1.  C.  C.  507;  and  this  case  below,  164  Fed.  Rep. 
638. 

This  case  is  even  stronger  for  the  commission  than  that  in 
which  the  terminal  charge  was  condemned  in  186  U.  S.  320. 
The  power  of  the  commission  to  make  orders  such  as  the  one  in- 


100  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

volved  is  legislative  and  an  order  should  not  be  set  aside  by 
the  courts  unless  it  violates  property  rights  guaranteed  by  the 
Constitution.  Maximum  Rate  Cases,  167  U.  S.  479;  Reagan  v. 
Farmers'  L.  A  T.  Co.,  154  U.  S.  362;  KnoxviUe  v.  Water  Co., 
212  U.  S.  1 ;  WtUcox  v.  Consol.  Gas  Co.,  212  U.  S.  19;  PrerUis  v. 
Atlantic  Coast  Line,  211  U.  S.  210;  Hom^e  Telephone  Co.  v. 
Los  Angeles,  211  U.  S.  265;  Honolulu  Transit  Co.  v.  Hatoaii, 
211  U.  S.  282. 

Under  the  old  law  the  function  of  the  Interstate  Commerce 
Commission  was  in  its  nature  judicial.  It  passed  upon  the 
reasonableness  of  existing  rates  and  the  courts  reviewed  its 
conclusions  just  as  they  review  those  of  an  inferior  judicial 
tribunal,  treating  the  commission  as  a  referee  of  the  Circuit 
Courts  of  the  United  States.  See  37  Fed.  Rep.  614;  New  Or- 
leans &  Texas  Pacific  Ry.  v.  The  Interstate  Commerce  Commis- 
sion, 162  U.  S.  184 ;  Maximum  Rate  Cases,  167  U.  S.  479.  Under 
the  act  as  now  amended  the  commission  fixes  the  rate  and  the 
courts  have  the  same  authority  to  review  that  they  would  if 
the  rate  had  been  fixed  by  Congress  itself.  The  so-called 
"Court  Review"  amendment,  which  is  embodied  in  the  Hep- 
bum  Act,  is  merely  declaratory.  The  only  thing  added  is  the 
venue  and  the  express  authorization  of  suits  against  the  com- 
mission as  a  representative  of  the  Government. 

It  is  not  the  reasonableness  of  the  rate  which  is  now  before 
the  coiut;  that  question  is  submitted  exclusively  to  the  com- 
mission. The  rate  fixed  by  the  commission  may  in  the  judg- 
ment of  the  court  be  unreasonable  and  yet  it  will  not  be  de- 
clared unlawful  unless  it  is  so  unreasonable  as  to  constitute  a 
confiscation  of  property.  KnoxviUe  v.  Water  Co.,  212  U.  S.  1; 
San  Diego  Land  &  Town  Co.  v.  National  City,  174  U.  S.  739, 754. 

The  commission  did  not  err  in  considering  the  terminal 
charge  and  the  through  rates  together.  That  was  settled  in  the 
C,  B.  &  Q.  Case,  186  U.  S.  320,  and  there  has  been  no  change 
since  then.  The  sole  result  of  the  terminal  charge  is  to  in- 
crease the  cost  to  the  shipper  for  the  same  service.  Nor  did 
the  Hepburn  Act  since  passed  alter  the  situation.    In  neither 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.    101 

215  U.  S.  Argument  for  Appellant. 

case  has  there  been  an  obligation  to  make  a  terminal  charge. 
The  raiboads  have  created  the  Union  Stock  Yards  and  made 
it  their  depot  and  the  only  available  place  for  delivery  of  live 
stock  in  Chicago.  It  is  the  greatest  live  stock  market  in 
America  and  the  other  depots  they  have  established  are  paper 
depots  and  no  real  terminal  service  exists.  It  is  a  pretense  for 
the  terminal  charge.  Covington  Stock  Yards  v.  Keith,  139 
U.  S.  128.  No  charge  above  one  dollar  per  car  is  justifiable. 
Putting  the  two  dollars  terminal  charge  on  at  Chicago  and  not 
at  other  points  made  an  unjust  discrimination  against  Chicago 
and  is  not  justifiable. 

The  order  does  not  violate  constitutional  rights  even  if  one 
doUar  is  less  than  the  cost  of  terminal  service. 

The  rule  adopted  below  is  that  where  railroad  companies 
publish  a  teminal  charge  for  terminal  service,  and  the  com- 
mission is  called  upon  to  declare  whether  or  not  it  is  reason- 
able, the  commission  must,  as  a  matter  of  law,  determine  this 
question  solely  by  the  cost  of  the  terminal  service,  independent 
of  the  fact  that  the  through  rate  already  includes  compen- 
sation for  the  terminal  service  and  independent  of  the  fact 
that  the  transaction  as  a  whole  is  profitable  to  the  roads. 

This  is  not  sustained  by  reason  or  authority.  To  uphold  it 
is  to  say  that  the  railroads  can  charge  twice  for  the  same  ser- 
vice, and  the  commission  is  without  power  to  strike  off  the 
charge  which  is  last  put  on.  Even  if  the  railroads  had  in  this 
case,  actually  and  in  good  faith,  separated  the  terminal  service 
from  the  through  service,  and  the  terminal  charge  from  the 
through  charge,  the  commission  could  reduce  the  terminal 
charge  if  they  found  that  the  through  charge  was  high  enough 
to  include  it. 

But  the  railroads  have  not  separated  these  two  services  and 
charges.  They  cannot  separate  the  services  because  a  ship- 
ment of  live  stock  from  the  point  of  origin  to  the  Union  Stock 
Yards  is  one  transaction  and  inseparable. 

If  a  carrier  adds  a  charge  for  a  pretended  separate  service, 
which  is  already  included  in  another  service  for  which  he  is 


102  OCTOBER  TERM,  1909. 

Argument  for  Appellee.  215  U.  S. 

amply  paid,  the  commission  may  reduce  the  extra  charge, 
even  to  a  point  below  the  cost  of  the  pretended  separate  ser- 
vice. Southern  Railroad  Co.  v.  The  SL  Louis  Hay  &  Grain  Co., 
214  U.  S.  297,  distinguished. 

The  cost  of  a  particular  service  is  not  a  proper  test  of  the 
reasonableness  of  the  charge  for  it  when  the  service  performed 
is  part  of  a  larger  transaction.  Minn.  &  St.  Paul  R.  R.  v. 
Minnesota,  186  U.  S.  257,  267;  St.  Louis  <k  S.  F.  R.  R.  Co.  v. 
GiH,  156  U.  S.  649.  See  also  Atlantic  Coast  Line  R.  R.  Co. 
V.  N.  C.  Corp.  Com.,  260  U.S.I;  Cav.  &  Lex.  Turnpike  Co.  v. 
Sanford,  164  U.  S.  596;  A.  <k  V.  R.  R.  Co.  v.  Railroad  Com.  of 
Miss.,  203  U.  S.  496;  Railroad  Co.  v.  WeU  &  Neoille,  96  Texas, 
408. 

In  the  present  case,  even  if  one  dollar  per  car  be  below  the 
cost  of  the  particular  service,  the  railroads  cannot  complain, 
since  the  whole  charge  for  the  whole  service  is  admittedly 
profitable. 

It  is  not  shown  that  the  commission's  allowed  charge  of 
one  dollar  per  car  is  less  than  cost  of  terminal  service.  The 
commission's  order  applies  only  to  whole  transaction  from 
point  of  origin  and  as  so  considered  the  charge  is  not  below 
cost. 

Every  intendment  of  law  and  fact  should  avail  to  support 
the  order  of  the  commission. 

When  questions  of  fact  are  submitted  to  executive  or  ad- 
ministrative oflScers  of  the  Government  their  conclusions  are 
final.  When  questions  so  submitted  involve  both  fact  and  law 
the  conclusion  will  not  ordinarily  be  disturbed  by  the  courts. 
Even  when  a  question  of  law  only  is  submitted  to  other  de- 
partments the  courts  will  make  every  presumption  in  favor 
of  the  interpretation  reached.  Bales  &  Guild  Co.  v.  Payne, 
194  U.  S.  106;  Marquez  v.  FrMe,  101  U.  S.  473. 

Mr.  William  D.  McHugh  and  Mr.  Walker  D.  Hines  for  ap- 
pellee : 
The  railroad  companies  have  divided  their  said  rates  and 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.    103 

215  U.  S.  Argument  for  Appellee. 

have  made  a  distinct  charge  for  transportation  from  the  points 
of  shipment  to  Chicago,  and  a  separate  terminal  charge  for 
delivery  to  the  stock  yards,  a  point  beyond  the  lines  of  the 
respective  carriers. 

The  separate  terminal  charge  of  two  doUars  per  car  made  by 
the  railroad  companies  for  the  delivery  by  them  of  live  stock 
to  the  stock  yards,  a  point  beyond  the  lines  of  their  respective 
railroads,  is  not  excessive  since  it  is  less  than  the  actual  cost  to 
the  railroads  for  the  performance  of  such  service. 

Each  appellee  had  the  right  to  divide  the  charge  for  trans- 
portation so  as  to  have  one  rate  from  point  of  shipment  to  a 
point  on  its  tracks  in  Chicago,  and  a  separate  charge  thence  to 
the  stock  yards.  Walker  v.  Keenan,  73  Fed.  Rep.  755;  S.  C, 
7  I.  C.  C.  Rep.  548;  §  6  of  the  Act  to  Regulate  Commerce; 
Interstate  Comm,  Comm.  v.  C,  B.  &  Q.  R,  R,  Co,,  186  U.  S. 
320,  335. 

The  commission's  order  is  contrary  to  the  Constitution. 
Amendment  V,  and  see  as  to  right  of  carrier  to  compensation 
for  additional  service.  So,  Ry,  Co.  v.  St.  Louis  Hay  Co.,  214 
U.  S.  297,  301. 

There  is  no  authority  for,  nor  do  cases  cited  by  appellant 
sustain  proposition  that  in  order  to  set  aside  a  rate  prescribed 
by  the  commission,  the  carrier  must  show  confiscation  as  to 
all  its  business. 

The  commission's  order  was  made  under  clear  error  of  law. 

The  courts  have  power  to  set  aside  any  order  of  the  commis- 
fflon  not  conforming  to  the  statute.  As  to  the  power  conferred 
on  the  commission  by  the  statute,  see  Vol.  2,  Hearings  Before 
Senate  Interstate  Commerce  Committee,  pp.  1662-1674.  The 
power  of  the  court  to  review  on  mixed  questions  of  law  and 
fact,  or  of  law  alone,  may  be  exercised  without  regard  as  to 
whether  a  constitutional  right  has  been  violated. 

Judicial  intervention  is  expressly  contemplated  by  the  act 
itself  and  in  this  case  is  especially  appropriate  because  the 
regulation  is  of  vested  rights  and  not  of  matters  wholly  under 
power  of  Government.    The  right  of  owners  of  railroads  to 


104  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

adequate  protection  exists  independently  of  consent  of  the 
Government. 

Mr.  Justice  Brewer,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

The  controversy  as  to  this  terminal  charge  has  been  of  long 
duration.  A  history  of  it  antecedent  to  the  present  litigation 
is  to  be  found  in  Interstate  Commerce  Commission  v.  C,  B.  & 
Q,  R,  R.  Company,  186  U.  S.  320. 

It  is  well  to  understand  the  precise  question  which  is  pre- 
sented in  this  case.  That  question  is  the  validity  of  the  ter- 
minal charge  of  two  dollars  per  car.  The  report  of  the  com- 
mission opens  with  this  statement:  "The  subject  of  this 
complaint  is  the  so-called  terminal  charge  of  $2  per  car  imposed 
by  the  defendants  for  the  delivery  of  carloads  of  live  stock  at 
the  Union  Stock  Yards  in  Chicago,"  and  its  order  was  in  terms 
that  the  railroad  companies  be — 

"required  to  cease  and  desist  on  or  before  the  1st  day  of  Feb- 
ruary, 1908,  from  exacting  for  the  delivery  of  live  stock  at  the 
Union  Stock  Yards,  in  Chicago,  111.,  with  respect  to  shipments 
of  live  stock  transported  by  them  from  points  outside  of  that 
State,  their  present  terminal  charge  of  $2  per  car. 

"It  is  further  ordered  that  said  defendants  be,  and  they  are 
hereby  notified  and  required  to  establish  and  put  in  force  on  or 
before  the  1st  day  of  February,  1908,  and  apply  thereafter 
during  a  period  of  not  less  than  two  years,  for  the  delivery  of 
live  stock  at  the  Union  Stock  Yards,  in  said  Chicago,  with 
respect  to  shipments  of  live  stock  transported  by  them  from 
points  outside  the  State  of  Illinois,  a  terminal  charge  which 
shall  not  exceed  $1  per  car,  if  any  terminal  charge  is  main- 
tained by  them." 

The  sixth  section  of  the  act  known  as  the  "Hepburn  Act," 
(an  act  to  amend  the  Interstate  Commerce  Act,  passed  on 
June  29,  1906,  c.  3591,  34  Stat.  584),  requires  carriers  to  file 
with  the  commission  and  print  and  keep  open  to  inspection 


INTERSTATE  COMMERCE  COMM.  v,  STICKNEY.    106 
215  U.  8.  Opinion  of  the  Ck>urt. 

schedules  showing,  among  other  things,  ''separately  all  ter- 
minal charges  .  .  .  and  any  rules  or  regulations  which  in 
any  wise  change,  afifect,  or  determine  any  part  or  the  aggregate 
of  such  aforesaid  rates."  By  §  15  the  commission  is  authorized 
and  required,  upon  a  complaint,  to  inquire  and  determine 
what  would  be  a  just  and  reasonable  rate  or  rates,  charge  or 
charges.  This,  of  course,  includes  all  charges,  and  the  carrier 
is  entitled  to  have  a  finding  that  any  particular  charge  is  un- 
reasonable and  unjust  before  it  is  required  to  change  such 
charge.  For  services  that  it  may  render  or  procure  to  be  ren- 
dered off  its  own  line,  or  outside  the  mere  matter  of  trans- 
portation over  its  line,  it  may  charge  and  receive  compensa- 
tion. Southern  Railway  Co.  v.  St.  Louis  Hay  Co.,  214  U.  S.  297. 
If  the  terminal  charge  be  in  and  of  itself  just  and  reasonable  it 
caimot  be  condemned  or  the  carrier  required  to  change  it  on 
the  ground  that  it,  taken  with  prior  charges  of  transportation 
over  the  lines  of  the  carrier  or  of  connecting  carriers,  makes  the 
total  charge  to  the  shipper  unreasonable.  That  which  must  be 
corrected  and  condemned  is  not  the  just  and  reasonable  ter- 
minal charge,  but  those  prior  charges  which  must  of  them- 
selves be  imreasonable  in  order  to  make  the  aggregate  of  the 
charge  from  the  point  of  shipment  to  that  of  delivery  un- 
reasonable and  unjust.  In  order  to  avail  itself  of  the  benefit 
of  this  rule  the  carrier  must  separately  state  its  terminal  or 
other  special  charge  complained  of,  for  if  many  matters  are 
lumped  in  a  single  charge  it  is  impossible  for  either  shipper  or 
commission  to  determine  how  much  of  the  lump  charge  is  for 
the  terminal  or  special  services.  The  carrier  is  under  no 
obligations  to  charge  for  terminal  services.  Business  interests 
may  justify  it  in  waiving  any  such  charge,  and  it  will  be  con- 
sidered to  have  waived  it  unless  it  makes  plain  to  both  shipper 
and  commission  that  it  is  insisting  upon  it.  In  the  case  in  186 
U.  S.  supra,  we  sustained  the  decree  of  the  lower  court,  re- 
straining the  reduction  of  the  terminal  charge  from  $2  to  $1  as 
to  all  stock  shipped  to  Chicago,  although  the  commission  had 
stated  that  there  had  been  a  reduction  of  the  through  rate 


106  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

from  certain  points  by  from  $10  to  $15,  in  reference  to  which 
reduction  and  its  effect  upon  the  order  of  the  commission  we 
said,  speaking  by  Mr.  Justice  White,  after  quoting  from  the 
report  of  the  commission  (pp.  338,  339) : 

"  In  other  words,  it  was  held  that  the  rate,  which  was  im- 
just  and  unreasonable  solely  because  of  the  $1  excess,  con- 
tinued to  be  unjust  and  unreasonable  after  this  rate  had  been 
reduced  by  from  ten  to  fifteen  dollars.  This  was  based,  not 
upon  a  finding  of  fact — as  of  course  it  could  not  have  been  so 
based — but  rested  alone  on  the  ruling  by  the  commission  that 
it  could  not  consider  the  reduction  in  the  through  rate,  but 
must  confine  its  attention  to  the  $2  terminal  rate,  since  that 
alone  was  the  subject-matter  of  the  complaint.  But,  as  we 
have  previously  shown,  the  commission,  in  considering  the 
terminal  rate,  had  expressly  found  that  it  was  less  than  the 
cost  of  service,  and  was  therefore  intrinsically  just  and  reason- 
able, and  could  only  be  treated  as  unjust  and  unreasonable  by 
considering  'the  circumstances  of  the  case;'  that  is,  the 
through  rate  and  the  fact  that  a  terminal  charge  was  included 
in  it,  which,  when  added  to  the  $2  charge,  caused  the  terminal 
charge  as  a  whole  to  be  unreasonable.  Having  therefore  de- 
cided that  the  $2  terminal  charge  could  only  be  held  to  be 
unjust  and  imreasonable  by  combining  it  with  the  charge  em- 
braced in  the  through  rate,  necessarily  the  through  rate  was 
entitled  to  be  taken  into  consideration  if  the  previous  con- 
clusions of  the  commission  were  weU  founded.  It  cannot  be 
in  reason  said  that  the  inherent  reasonableness  of  the  terminal 
rate,  separately  considered,  is  irrelevant  because  its  reason- 
ableness is  to  be  determined  by  considering  the  through  rate 
and  the  terminal  charge  contained  in  it,  and  yet  when  the 
reasonableness  of  the  rate  is  demonstrated,  by  considering  the 
through  rate  as  reduced,  it  be  then  held  that  the  through  rate 
should  not  be  considered.  In  other  words,  two  absolutely  con- 
flicting propositions  cannot  at  the  same  time  be  adopted.  As 
the  finding  was  that  both  the  terminal  charge  of  $2  and  the 
through  rate  as  reduced  when  separately  considered  were 


INTERSTATE  COMMERCE  COMM.  v,  STICKNEY.  107 
215  U.  S.  Opinion  of  the  Court. 

just  and  reasonable,  and  as  the  further  finding  was  that  as  a 
consequence  of  the  reduction  of  from  ten  to  fifteen  dollars  per 
car,  the  rates,  considered  together,  were  just  and  reasonable,  it 
follows  that  there  can  be  no  possible  view  of  the  case  by  which 
the  conclusion  that  the  rates  were  unjust  and  unreasonable  can 
be  sustained/' 

The  tariff  schedules  of  the  appeUees  make  clear  the  separate 
terminal  charge  for  delivery  from  their  own  lines  to  the  Union 
Stock  Yards.  We  quote  the  schedule  of  the  Chicago  and 
Northwestern  Railroad  Company : 

*'The  live  stock  station  and  stock  yards  of  this  company  in 
Chicago  are  located  at  Mayfair,  and  the  rates  named  herein 
apply  only  to  live  stock  intended  for  delivery  at,  or  received 
and  transported  from  the  stock  yards  of  the  company  at  May- 
fair,  in  Chicago. 

*'  Upon  all  live  stock  consigned  to  or  from  the  Union  Stock 
Yards  in  Chicago,  or  industries  located  on  the  Union  Stock 
Yards  Railway  or  the  Indiana  State  Line  Railway,  and  trans- 
ported and  delivered  to  or  received  and  transported  from  said 
Union  Stock  Yards  or  said  industries  located  on  said  Union 
Stock  Yards  Railway,  or  the  Indiana  State  Line  Railway, 
aforesaid,  a  charge  of  two  dollars  ($2.00)  per  car  wiU  be  made 
for  the  special  and  separate  service  of  transporting  such  cars  to 
said  Union  Stock  Yards,  or  to  said  industries  on  said  Union 
Stock  Yards  Railway,  or  the  Indiana  State  Line  Railway,  from 
this  company's  own  rails,  or  of  transporting  such  cars  from 
said  Union  Stock  Yards,  or  said  industries  on  said  Union  Stock 
Yards  Railway,  or  the  Indiana  State  line  Railway,  to  this 
company's  own  rails." 

The  others  are  equaUy  specific.  In  some  of  them,  as  in 
those  of  the  Atchison,  Topeka  and  Santa  Fe  Railway  Com- 
pany, it  is  provided : 

*'The  attention  of  the  shipper  must  be  and  is  called  to  the 
fact  that  the  transportation  charge  on  live  stock  delivered  at 
our  own  yards  at  Corwith  in  Chicago  will  be  two  dollars  ($2.00) 
per  car  less  than  when  delivered  at  the  Union  Stock  Yards 


108  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

at  Chicago,  or  at  industries  located  on  the  Union  Stock  Yards 
Railway  or  the  Indiana  State  line  Railway,  and  the  agent 
should  ascertain  definitely  at  which  point  the  shipper  desires 
delivery  to  be  made.  The  live  stock  contract  must  then  be 
filled  out  so  as  to  show  the  correct  destination  and  rate  as  pro- 
vided by  the  tariff  and  amendments." 

Further,  it  is  shown  by  the  affidavits  that  the  amoimt  of 
such  terminal  charge  is  not  entered  upon  the  general  freight 
charges  of  the  companies,  but  is  kept  as  a  separate  item.  The 
Union  Stock  Yards  Company  is  an  independent  corporation 
and  the  fact,  if  it  be  a  fact,  that  most  or  even  all  of  its  stock  is 
owned  by  the  several  railroad  companies  entering  into  Chicago 
does  not  make  its  lines  or  property  part  of  the  lines  or  property 
of  the  separate  railroad  companies. 

With  reference  to  the  reasonableness  of  the  terminal  charge, 
it  was  stipulated  on  the  hearing  before  the  Interstate  Com- 
merce Commission  that  all  the  testimony  taken  in  the  former 
proceedings  might  be  considered.  It  also  appears  that  ad- 
ditional testimony  was  there  offered.  None  of  this  testimony 
has  been  printed  in  the  record  presented  to  us.  We  have,  how- 
ever, our  former  decision  as  well  as  the  report  of  the  commis- 
sion on  the  recent  hearing,  and  also  the  affidavits  filed  on  this 
application,  and  can  consider  them.  It  appears  from  the 
former  case  that,  after  some  discussion,  when  testimony  was 
being  offered  on  the  question  of  reasonableness,  the  conmii&- 
sion  suggested  that  it  was  probably  unnecessary  to  offer 
further  evidence,  and  said  (186  U.  S.  327) : 

"'To  remove  all  doubt  upon  that  subject,  however,  if  it  is 
not  clearly  found,  we  now  find  that,  looking  entirely  to  the 
cost  of  service,  and  including  as  a  part  of  that  cost  the  track- 
age charge  paid  the  Union  Stock  Yards  and  Transit  Com- 
pany and  the  unloading  charge  paid  that  same  company,  the 
amount  of  this  terminal,  if,  under  the  circumstances  of  this 
case,  it  is  proper  to  impose  the  charge  is  reasonable.  If  any 
modification  of  the  present  findings  is  necessary,  they  are 
hereby  modified  to  that  extent."' 


I 


INTERSTATE  COMMERCE  COMM.  v.  STICKNEY.  109 
215  U.  S.  OpinioQ  of  the  Court. 

And  in  the  excerpt  put  into  the  margin  in  the  opinion  of  this 
court  is  a  statement  of  the  actual  and  estimated  expense  to  the 
different  raikoads  for  making  such  delivery,  which  makes  it 
quite  clear  that  the  charge  was  a  reasonable  one.  This  finding 
as  to  the  reasonableness  of  the  charge  was  repeated  again  by 
the  commission. 

In  its  report  in  the  present  case  it  said : 

"The  original  case  did  not  show  the  cost  of  making  delivery 
of  other  kinds  of  carload  freight  at  this  market,  but  the  present 
record  shows  that  the  average  cost  to  one  defendant,  the 
Atchison,  Topeka  and  Santa  Fe  Railway  Company,  of  deliver- 
ing all  kinds  of  carload  freight,  including  live  stock,  is  S5.40 
per  car,  while  the  cost  of  delivering  live  stock  is  not  far  from 
$2  per  car.  The  testimony  further  indicates  that  the  average 
cost  of  delivering  all  kinds  of  carload  freight  does  not  differ 
much  in  the  case  of  the  Santa  Fe  from  that  in  the  case  of  the 
other  defendants,  although  it  does  not  appear  that  several  of 
the  defendants  are  at  greater  expense  than  S2  per  car  in  mak- 
ing delivery  of  live  stock  at  the  stock  yards.  We  think  it 
fairly  appears  upon  this  record  that  the  total  cost  to  these 
defendants  of  delivering  live  stock  at  the  Union  Stock  Yards, 
including  the  trackage  charge,  is  not  much,  if  any,  above  one- 
half  the  average  cost  of  handling  all  carload  freight  in  the  city 
of  Chicago." 

Under  those  circumstances  it  seems  impossible  to  avoid  the 
conclusion  that,  considered  of  and  by  itself,  the  terminal 
charge  of  two  dollars  a  car  was  reasonable.  If  any  shipper  is 
wronged  by  the  aggregate  charge  from  the  place  of  shipment 
to  the  Union  Stock  Yards  it  would  seem  necessarily  to  follow 
that  the  wrong  was  done  in  the  prior  charges  for  transporta- 
tion, and,  as  we  have  already  stated,  should  be  corrected  by 
proper  proceedings  against  the  companies  guilty  of  that  wrong, 
otherwise  injustice  will  be  done.  If  this  charge,  reasonable  in 
itself,  be  reduced  the  Union  Stock  Yards  Company  will  suffer 
loss  while  the  real  wrongdoers  will  escape.  It  may  be  that  it 
is  more  convenient  for  the  commission  to  strike  at  the  terminal 


110  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  R 

charge,  but  the  convenience  of  commission  or  court  is  not  the 
measure  of  justice. 

We  are  unable  to  find  any  error  in  the  conclusions  of  the  trial 
judges,  and  their  order  is,  therefore. 

Affirmed. 


HANOVER  NATIONAL  BANK  OF  NEW  YORK  v.  SUD- 
DATH,  RECEIVER  OF  AMERICAN  NATIONAL  BANK 
OF  ABILENE. 

ERROR  TO  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE  SECOND 

ciRCurr. 

No.  12.     Argued  Apiil  20,  1909.~Decided  November  29,  1909. 

When  a  bank  refuses  to  do  the  particidar  thing  requested  with  securi- 
ties delivered  to  it  for  that  purpose  only,  it  is  its  duty  to  return  the 
securities  and  no  general  lien  in  its  favor  attaches  to  them. 

The  fact  that  a  bank  has  in  its  possession  securities  which  were  sent  to  it 
for  a  particular  purpose  and  which  it  is  its  duty  to  return  to  the 
sender,  does  not  justify  its  retaining  them  for  any  other  purpose 
under  a  banker's  agreement  giving  it  a  general  lien  on  all  securi- 
ties deposited  by  the  sender. 

A  banker's  agreement  giving  a  general  lien  on  securities  deposited  by 
its  correspondent  will  not  be  construed  so  as  to  give  it  a  broad  mean- 
ing beyond  its  evident  scop)e  and  in  conflict  with  the  precepts  of 
duty,  good  faith  and  confidence  necessary  for  commercial  transac- 
tions; nor  will  a  printed  form  prepared  by  the  banker  be  so  extended 
by  the  construction  of  any  ambiguous  language. 

In  this  case  it  was  held  that  the  retention  by  a  bank  of  securities  for  a 
purpose  different  from  that  for  which  they  were  sent  by  its  corre- 
spondent could  not  be  predicated  on  the  consent  of  the  latter,  and 
that  inaction  of  the  correspondent  could  not  be  construed  as  con- 
sent. 

149  Fed.  liep.  127,  affirmed. 

The  facts  are  stated  in  the  opinion. 


HANOVER  NATIONAL  BANK  v,  SUDDATH.       Ill 
215  U.  S.  Argument  for  Defendant  in  Error. 

Mr.  Percy  S.  Dudley  for  plaintiff  in  error : 

Plaintiff  in  error  had  the  right  to  retain  the  notes  under 
the  express  terms  of  the  collateral  agreement.  AiUen  v. 
Bank,  174  U.  S.  125,  145;  Hiscock  v.  Varick  Bank,  206  U.  S. 
28,  and  cases  cited.  As  to  scope  of  words  "or  otherwise''  see 
Farr  v.  Nichols,  132  N.  Y.  327.  As  bailee  of  the  notes  the 
Hanover  Bank  had  a  lien  on  them.  Benjamin  on  Sales,  §  2, 
Am.  note.  As  to  construction  of  the  agreement,  see  GiUet  v. 
Bank,  160  N.  Y.  549;  SaUler  v.  Hallock,  160  N.  Y.  291,  297; 
Church  V.  Hubbari,  2  Cranch,  233;  HiUchinsan  v.  ManhaUan 
Co,,  150  N.  Y.  250;  21  Am.  &  Eng.  Ency.  Law,  2d  ed.,  1016. 
Plaintiff  in  error  had  the  right  to  retain  the  notes  by  virtue  of 
its  bankers'  lien.  1  Daniel's  Neg.  Inst.,  5th  ed.,  342;  1  Morse 
on  Banks,  4th  ed.,  §  324;  Reynes  v.  Durrumt,  130  U.  S.  354, 
390;  Biefyinger  v.  Continental  Bank,  99  U.  S.  143;  Bank  of 
Montreal  v.  White,  154  U.  S.  660;  Petrie  v.  Myers,  54  How. 
Pr.  513,  distinguished,  and  see  Armstrong  v.  Chemical  Bank, 
41  Fed.  Rep.  234;  CorUinental  Bank  v.  Weem^,  60  Texas, 
489. 

The  receiver  of  the  Abilene  Bank  took  the  assets  subject 
to  the  claim  of  the  Hanover  Bank  and  obligation  existing 
when  he  took  possession.  Scott  v.  Armstrong,  146  U.  S.  499; 
Rankin  v.  City  Nat.  Bank,  208  U.  S.  541. 

The  Hanover  Bank  had  the  consent  of  the  Abilene  Bank  to 
retain  the  notes.  Mailing  the  letters  was  a  delivery  and  had 
the  Abilene  Bank  mailed  cash  it  would  have  been  subject  to 
lien  of  Hanover  Bank  although  not  delivered  until  after  the 
failure;  it  is  so  also  as  to  these  notes.  McDonald  v.  Chemical 
Nat,  Bank,  174  U.  S.  610;  Ruggles  v.  Am,  Cent.  Ins.  Co.,  114 
N.  Y.  415. 

Mr.  Edward  B.  Whitney,  with  whom  Mr.  Francis  F.  Old- 
ham was  on  the  brief,  for  defendant  in  error : 

The  Hanover  Bank  had  no  general  lien  on  the  notes  in- 
volved, Brandao  v.  Bamett,  12  CI.  &  Fin.  787;  Story  on 
Agency,  §  381;  1  Morse  on  Banks,  4th  ed.,  597;  Bank  of  Met, 


112  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

V.  N.  E.  Bank,  1  How.  234,  239;  Leese  v.  Martin,  L.  R.  17 
Eq.  224,  235;  Reynes  v.  Dumont,  130  U.  &.  354.  These  and 
other  cases  all  hold  that  where  securities  are  sent  for  a  specific 
purpose  the  recipient  cannot  hold  them  for  any  other  purpose 
but  must  return  them.  1  Jones  on  liens,  2d  ed.,  244;  Lucas 
V.  Darrien,  7  Taunt.  278;  Petrie  v.  Myers,  54  How.  Pr.  513; 
Bank  of  Montreal  v.  White,  154  U.  S.  660.  The  bank  becomes 
a  trustee  to  apply  the  securities  as  directed  by  the  sender. 
Libby  v.  Hopkins,  104  U.  S.  309. 

The  Hanover  Bank  had  no  lien  on  the  notes  under  the 
agreement  and  there  was  no  other  agreement  or  consent  un- 
der which  that  bank  could  hold  them.  There  was  no  proposal 
or  acceptance  as  to  the  collateral  loan  and  payment  of  over- 
draft. 9  Cyc.  293;  MeyreU  v.  Surtees,  25  L.  J.  Ch.  257,  262; 
Scott  V.  Armstrong,  146  U.  S.  511. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

The  predecessor  of  the  present  receiver  of  the  American 
National  Bank  of  Abilene,  Texas,  sued,  in  April,  1905,  to  re- 
cover from  the  Hanover  National  Bank  of  New  York  four 
promissory  notes  or  their  value. 

We  shall  refer  to  the  corporations  as  the  Abilene  Bank  and 
the  Hanover  Bank. 

At  the  trial,  under  instruction,  there  was  verdict  for  the 
Hanover  Bank,  and  the  judgnient  thereon  was  reversed. 
Van  Zandt  \\  Hanover  Nat,  Bank.  149  Fed.  Rep.  127.  In 
conformity  to  the  opinion  of  the  Circuit  Court  of  Appeals,  on 
the  new  trial  a  \'erdict  was  directed  in  favor  of  the  receiver, 
and  to  n^verst^  the  affirmance  of  that  judgment  {Hanover  Nat. 
/i<iwJt  V,  Suiiiiath,  153  Fed.  Rep,  1021)  this  writ  of  error  is 
pnvnH»utiHl, 

The  factis  are  these:  Prior  to  November,  1903,  the  Abilene 
Bank  was  a  Ci>rroe*jxvndent  of  the  Hanover  Bank,  and  had  an 
aooount  with  the  latter.  The  oreilit  of  this  account  was  prin- 
oi|u^Uy  nmile  up  l\v  the  pnxwxte  arising  from  the  rediscount- 


HANOVER  NATIONAL  BANK  v,  SUDDATH.      113 
215  U.  S.  Opinion  of  the  Court. 

ing  by  the  Hanover  Bank  of  commercial  paper  for  account  of 
the  Abilene  Bank.  On  November  27,  1903,  the  Abilene  Bank 
signed  an  agreement  concerning  the  right  of  the  Hanover 
Bank,  imder  conditions  stated,  to  attribute  to  the  payment 
of  debts  due  it  by  the  Abilene  Bank  securities  in  its  hands 
belonging  to  the  Abilene  Bank.  In  January,  1905,  the  Han- 
over Bank  was  contingently  responsible  for  commercial  paper, 
aggregating  probably  sixteen  or  seventeen  thousand  dollars, 
which  it  had  rediscoimted  for  the  Abilene  Bank,  and  upon 
which  the  latter  bank  was  ultimately  liable. 

On  January  9,  1905,  the  Abilene  Bank  transmitted  by  mail 
to  the  Hanover  Bank  a  note  of  the  Hayden  Grocery  Company 
for  $2,000,  drawn  to  the  order  of  the  Abilene  Bank  and  by  it 
indorsed,  the  letter  stating  that  the  note  was  sent  for  discount 
and  credit.  On  the  next  day — ^the  tenth — the  Abilene  Bank 
also  transmitted  by  mail  a  note  drawn  by  R.  H.  Logan  and 
W.  R.  Logan  to  its  order,  and  by  it  indorsed  likewise,  with  a 
statement  that  it  was  sent  for  discount  and  credit.  On  the 
twelfth  of  the  same  month  the  Abilene  Bank  again  transmitted 
to  the  Hanover  Bank  for  discount  and  credit  two  other  notes, 
one  drawn  by  L.  W.  Hollis  for  $3,500,  and  indorsed,  as  were 
the  previous  notes  and  a  note  of  C.  B.  and  W.  F.  Scarborough, 
for  $1,500  likewise  so  indorsed,  the  letter  of  transmittal  yet 
again  stating  that  they  were  sent  for  discount  and  credit. 

The  Hayden  Grocery  Company  and  the  Logan  notes,  for- 
warded on  the  ninth  and  tenth  of  January,  reached  the  Han- 
over Bank  on  the  fourteenth;  and  on  that  day  it  telegraphed 
to  the  Abilene  Bank,  declining  to  discount  the  notes,  and  by 
a  second  telegram  said:  "Referring  to  previous  dispatch 
transfer  or  ship  currency,"  which,  according  to  the  counsel 
for  the  Hanover  Bank,  meant  to  call  upon  the  Abilene  Bank 
either  to  transfer  a  credit  from  some  other  bank  or  ship  cur- 
rency direct.  It  is  not  shown  that  any  reply,  either  by  tele- 
gram or  letter,  was  made  to  the  messages  thus  sent  on  the 
fourteenth.  The  notes  forwarded  on  the  twelfth  reached  the 
Hanover  Bank  on  the  sixteenth,  and  the  latter  at  once  tcle- 
VOL.  rcxv — 8 


114  OCTOBER  TERM,  1909. 

OpinioQ  of  the  Court.  215  U.  S. 

graphed,  "Not  satisfactory,"  and  confirmed  the  tel^ram  by 
a  letter,  saying:  "We  are  not  discounting  inclosures  for  you, 
but  hold  same  as  collateral  to  your  indebtedness  to  us."  The 
Abilene  Bank  did  not  reply  by  telegram  but  on  the  same  day 
wrote  to  the  Hanover  Bank  as  follows : 

"We  have  just  received  your  wire.  The  rediscounts  we 
sent  you  were  mostly  renewals  and  in  every  instance  'good 
as  gold.' 

"Since  the  drop  in  cotton,  collections  are  at  a  standstill, 
and  our  clients  expect  us  to  stay  with  them,  and  we  are 
obliged  to  ask  the  same  indulgence  from  our  correspondents. 

"Should  you  prefer,  we  will  send  our  B/P  with  collaterals 
attached. 

"  We  trust  you  will  accord  us  the  leniency  asked  for." 

On  the  morning  of  January  17,  1905,  there  stood  on  the 
books  of  the  Hanover  Bank  to  the  credit  of  the  Abilene  Bank 
the  sum  of  $616.15.  On  that  day  a  check  on  the  Hanover 
Bank,  dated  January  11,  1905,  drawn  by  the  Abilene  Bank 
for  the  sum  of  $3,825.45,  payable  to  the  New  York  Life  In- 
surance Company,  as  also  some  small  checks,  passed  through 
the  clearing  house.  Upon  attention  being  directed  to  the 
overdraft  which  thereby  resulted  a  telegram  was  sent  to  the 
Abilene  Bank,  referring  to  the  previous  letters  and  telegrams, 
and  asking  that  bank  what  it  had  done.  No  reply  having 
been  received  before  the  close  of  business  on  that  day,  the 
vice-president  of  the  Hanover  Bank,  after  examining  the 
written  agreement  to  which  we  have  previously  alluded,  al- 
lowed the  overdraft  to  stand,  and  to  cover  the  same  made 
an  entry  of  a  loan  of  $3,500  to  the  Abilene  Bank,  which  was 
placed  to  the  credit  of  that  bank,  and  after  absorbing  the 
overdraft,  left  to  its  credit  the  sum  of  $63.74.  On  the  same 
day  the  Hanover  Bank  wrote  to  the  Abilene  Bank,  saying: 
"As  your  accoimt  showed  overdrawn  to-day  over  $3,000, 
have  made  you  a  temporary  loan  of  $3,500  against  collateral 
in  our  hands."  On  the  next  day  (January  18)  the  Abilene 
Bank  closed  itvS  doors. 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      115 
215  U.  S.  Opinion  of  the  Ck>urt. 

It  is  to  be  observed  that  of  the  letters,  the  one  by  the  Han- 
over Bank,  written  on  the  seventeenth  of  January,  and  the 
one  written  on  the  previous  day  by  the  Abilene  Bank,  did  not 
reach  their  destination  until  after  the  failure  of  the  Abilene 
Bank. 

Thereafter  Biehard  L.  Van  Zandt  was  appointed  receiver, 
and,  as  we  have  said,  commenced  this  action  to  recover  the 
possession  of  the  four  notes  which  had  been  transmitted  to 
the  Hanover  Bank  as  above  stated,  or  the  value  of  such  notes, 
and  in  the  course  of  the  action  the  proceedings  took  place  to 
which  we  have  at  the  outset  referred.  The  ground  relied  upon 
for  recovery  was  that  as  the  notes  had  been  sent  to  the  Han- 
over Bank  for  discount  for  the  account  of  the  Abilene  Bank, 
upon  the  Hanover  Bank  refusing  to  discount  them  that  bank 
had  no  claim  whatever  upon  the  notes,  and  had  no  right  to 
apply  them  as  collateral  to  the  payment  of  the  voluntary 
overdraft  which  had  been  allowed  on  the  seventeenth  of  Jan- 
uary, and  thus  obt&in  a  preference  to  the  extent  of  the  ap- 
propriation over  the  general  creditors  of  the  Abilene  Bank. 
It  suffices  to  say  that  the  defense  of  the  Hanover  Bank  con- 
troverted this  contention,  and  asserted  that  the  appropriation 
of  the  notes  was  justified  under  its  general  bankers'  lien  or 
under  the  terms  of  the  special  agreement  of  November  27, 
1903.  During  the  pendency  of  the  action  the  Hanover  Bank 
collected  three  of  the  notes,  deducted  from  their  proceeds  the 
sum  of  $3,725.86  then  due,  and  paid  to  the  receiver  the  bal- 
ance and  also  delivered  to  him  the  uncollected  note,  being  the 
note  of  R.  H.  Logan  and  W.  R.  Logan,  which  had  been  trans- 
mitted to  the  Hanover  Bank  on  January  10  and  was  by  it 
received  on  the  fourteenth. 

It  is  contended  that  the  appellate  court  erred  in  affirming 
the  ruling  of  the  CSrcuit  Court,  directing  a  verdict  for  the  re- 
ceiver. The  groimds  for  this  contention  are  that  the  evidence 
showed  that  the  Hanover  Bank  had  the  right  to  retain  the 
four  notes  or  the  balance  of  their  proceeds,  by  virtue  of  its 
general  bankers'  lien;  and,  if  not,  as  a  result  of  the  express 


116  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  8. 

provisions  of  the  agreement  of  November  27,  1903;  and,  in 
any  event,  by  the  authority  or  consent  of  the  Abilene  Bank. 
Without  stopping  to  consider  whether  the  third  contention  is 
not  really  involved  in  the  first  two,  we  pass  to  their  consid- 
eration in  the  order  mentioned. 

1.  Was  there  a  right  of  retention  in  the  New  York  bank  by 
\yirtue  of  its  general  bankers^  lienf 

The  rulings  of  this  court  foreclose  this  question,  since  they 
conclusively  establish  that  a  general  lien  in  favor  of  a  bank 
cannot  attach  to  securities  which  are  delivered  to  it  in  order 
that  it  may  do  a  particular  thing  with  them,  and  that  when  it 
refuses  to  do  that  thing  the  duty  to  return  exists.  The  gen- 
eral subject  was  elaborately  considered  and  the  authorities 
were  fully  reviewed  in  Reynes  v.  Dumont,  130  U.  S.  354.  In 
that  case  securities  had  been  sent  to  bankers  for  a  specific 
purpose.  That  purpose  having  been  accomplished,  the  se- 
curities were  permitted  to  remain  in  the  custody  of  the  bankers 
as  depositaries,  because  they  were  in  a  good  market  and 
a  place  convenient  for  procuring  loans,  and  because  the  ex- 
pressage  upon  their  return  would  have  been  great.  The  right 
to  a  general  bankers'  lien  upon  the  securities  was  denied. 
Such  a  lien,  it  was  said  (on  p.  390),  would  arise  "in  favor  of  a 
bank  or  banker  out  of  contract  expressed,  or  implied  from  the 
usage  of  the  business,  in  the  absence  of  anjrthing  to  show  a 
contrary  intention."  Ordinarily,  it  was  declared  (p.  391) 
the  lien  would  attach  in  favor  of  a  bank  upon  securities  and 
moneys  of  the  customer  deposited  in  the  usual  course  of  busi- 
ness, etc.  It  was,  however,  expressly  declared  not  to  "arise 
upon  securities  accidentally  in  the  possession  of  the  bank,  or 
not  in  its  possession  in  the  course  of  its  business  as  such,  nor 
where  the  securities  are  in  its  hands  under  circumstances,  or 
where  there  is  a  particular  mode  of  dealing,  inconsistent  with 
such  general  lien."  Biebinger  v.  Continental  Bank,  99  U.  S. 
143,  was  one  of  the  authorities  cited  in  the  opinion.  In  that 
case  it  appeared  a  deed  had  been  deposited  with  the  bank  as 
collateral  security  for  the  customer's  current  indebtedness 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      117 
215  U.  S.  OpinioQ  of  the  Court. 

and  discounts.  After  pajonent  of  this  indebtedness  and  a 
temporary  suspension  of  dealings,  the  customer  incurred  new 
indebtedness  to  the  bank,  but  as  it  did  not  appear  that  the 
money  was  loaned  or  debt  created  on  the  faith  of  the  deposit 
of  the  deed,  the  bank's  claim  of  a  lien  thereon  was  denied. 
Bank  of  Montreal  v.  White,  154  U.  S.  660,  is  also  a  pertinent 
decision.  Without  elaborating  the  issues  which  were  there 
involved,  it  suffices  to  say  that  in  an  action  to  recover  upon 
a  promissory  note,  in  order  to  escape  the  contention  that  it 
was  not  an  innocent  holder  the  bank  contended  that  before 
the  note  was  sent  to  it  for  discount  the  sender  was  imder  a 
promise  to  furnish  security  for  advances  to  be  made,  and 
therefore  the  rights  of  the  bank  as  an  innocent  holder  were  to 
be  determined  by  the  state  of  its  knowledge  at  the  time  the 
note  was  received,  although  the  discount  was  declined,  and 
not  by  the  state  of  knowledge  existing  when  at  a  subsequent 
date  the  note  was  actually  discounted.  In  disposing  of  a 
contention  that  the  trial  court  had  committed  error  in  not 
giving  an  instruction  which  the  bank  asked  in  accord  with  its 
contention  as  just  stated,  the  court  said : 

''There  can  be  no  pretense  in  this  case  that  the  note  in  suit 
was  ever  actually  delivered  to  the  bank  as  collateral  security 
for  past  or  future  indebtedness.  In  the  letter  transmitting 
it,  the  bank  manager  was  asked  to  discount  it  and  place  the 
proceeds  to  the  credit  of  the  manufacturing  company.  In 
that  event,  the  'overdraft  kindly  allowed  on  Friday,'  was 
to  be  charged  against  the  credit,  but  it  is  nowhere,  even  in 
the  remotest  degree,  intimated  that  if  the  discount  was  de- 
clined the  note  might  be  kept  as  collateral.  The  charge  asked 
and  refused  wj^,  therefore,  wholly  immaterial,  and  the  judg- 
ment cannot  be  reversed  because  it  was  not  given." 

2.  Wa^  the  Hanover  Bank  entitled  to  retain  the  notes  under 
the  terms  of  the  agreement  of  November  27,  1903? 

The  material  portions  of  the  agreement  are  as  follows : 

"For  and  in  consideration  of  one  dollar  [&c,],  the  under- 
signed agree  with  said  bank  that  all  bills  of  exchange,  notes. 


L 


118  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

checks,  and  the  proceeds  thereof,  and  all  other  securities, 
money  and  property  of  every  kind  owned  by  the  undersigned, 
or  either  or  any  of  them,  or  in  which  they,'  or  any  or  either  of 
them,  have  any  interest  deposited  with  said  bank,  or  which 
may  hereafter  be  deposited  with  said  bank,  or  which  may  be 
in  any  wise  in  said  bank,  or  imder  its  control,  as  collateral 
security  for  loans  or  advances  already  made  or  hereafter  to 
be  made  to  or  for  account  of  the  undersigned,  by  said  bank, 
or  otherwise,  may  be  held,  collected  and  retained  by  said 
bank  imtil  all  liabilities,  present  or  future,  of  the  imdersigned, 
or  any  or  either  of  them,  due  or  not  due  of  every  kind  to  said 
bank,  now  or  hereafter  contracted,  shall  be  paid  and  fully 
satisfied." 

For  the  Hanover  Bank  it  is  contended  that  although  the 
notes  were  not  in  its  possession  as  collateral  security  for  any 
debt  due  it,  nevertheless,  as  it  had  the  physical  possession  of 
the  notes  and  they  were  not  unlawfully  in  its  hands,  it  had 
under  the  agreement  the  power  to  make  the  advance  to  cover 
the  overdraft  and  to  attribute,  without  the  consent  of  the 
Abilene  Bank,  the  notes  in  question  as  collateral  security  for 
the  loan  which  was  made.  The  construction  upon  which  this 
proposition  is  rested  gives  to  the  agreement  the  most  lati- 
tudinarian  meaning,  and  besides,  in  effect,  depends  upon  con- 
sidering one  or  more  clauses  separately  from  their  context, 
thereby  affixing  to  them  a  significance  to  which  they  would 
not  be  entitled  if  considered  in  connection  with  the  text  in 
which  they  are  found.  To  illustrate:  It  is  said  the  words 
which  give  the  power  to  the  Hanover  Bank  to  appropriate 
any  securities  "deposited  with  said  bank,  or  which  may  here- 
after be  deposited  with  said  bank,  or  which  may  be  in  any 
wise  in  said  bank,  or  under  its  control,"  are  broad  enough  to 
embrace  securities  in  the  hands  of  the  Hanover  Bank,  without 
considering  how  they  came  into  the  possession  of  that  bank 
or  without  taking  into  account  whether  that  bank  had  any 
claim  whatever  aside  from  the  agreement  in  question,  and 
without  considering  whether  it  was  under  the  plain  duty  to 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      119 
215  U.  S.  Opinion  of  the  Court. 

return  the  securities  upon  demand;  and  had  no  right  to  re- 
quire the  performance  of  any  act  or  duty  by  the  Abilene  Bank 
in  respect  thereto.  But  this  broad  interpretation  is,  we  think, 
unreasonable,  since  it  cannot  be  assumed,  if  there  be  room  for 
implication  to  the  contrary,  that  the  agreement  was  intended 
to  confer  the  right  upon  the  Hanover  Bank  to  appropriate 
securities  merely  because  such  securities  had  come  into  its 
physical  control  and  with  the  obligation  to  return  on  demand. 
We  say  this,  because  it  is  manifest  that  to  attribute  the  broad 
meaning  claimed  would  be  in  conflict  with  the  precepts  of 
duty  and  good  faith,  and  would  be  destructive  of  that  con- 
fidence and  fair  dealing  so  essentially  necessary  in  commercial 
transactions.  In  the  light  of  these  considerations  we  think 
the  language  relied  upon  should  not  receive  the  all-embracing 
meaning  sought  to  be  attributed  to  it,  but  should  be  limited 
so  as  to  cause  the  same  to  embrace  only  property  deposited 
with  the  Hanover  Bank,  *'  or  which  may  hereafter  be  deposited 
with  said  bank,  or  which  may  be  in  any  wise  in  said  bank,  or 
under  its  control,"  under  circumstances  and  conditions  which 
gave  to  that  bank  by  operation  of  law  or  otherwise  some 
right  to  retain  such  property  for  a  particular  purpose.  And 
irrespective  of  the  meaning  which  we  attribute  to  the  lan- 
guage relied  upon,  when  independently  considered,  we  are 
of  opinion  that  the  want  of  merit  in  the  construction  given 
to  the  agreement  by  the  Hanover  Bank  is  clearly  demon- 
strated when  the  context  is  brought  into  view.  That  is  to 
say,  we  consider  that  the  provision  of  the  agreement  to  which 
we  have  just  referred  is  qualified  by  the  language  which  fol- 
lows it,  viz.,  "as  collateral  security  for  loans  or  advances 
already  made  or  hereafter  to  be  made  to  or  for  account  of  the 
undersigned,  by  said  bank,  or  otherwise."  In  other  words, 
the  provision  just  quoted,  we  think,  must  be  considered  as 
Umitative  in  its  character  and  as  controlling,  therefore,  the 
previous  stipulations,  thus  confining  the  right  to  apply  se- 
curities in  the  possession  of  the  Hanover  Bank  to  such  as 
had  come  into  its  possession  or  control  for  the  purposes  de- 


120  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

scribed.  The  contention  that  the  words  "or  otherwise"  de- 
prive the  provision  in  question  of  its  limitative  effect  is,  we 
think,  clearly  without  merit,  since  that  view  cannot  be  up- 
held without  causing  the  words  in  question  to  dominate  and 
destroy  the  meaning  of  the  agreement  as  derived  from  a  con- 
sideration of  all  its  provisions.  Particularly  is  this  the  case, 
as  those  words  are  susceptible  of  a  meaning  in  harmony  with 
the  context;  that  is  to  say,  may  be  held  to  give  the  right  to 
retain  securities  under  the  circumstances  stated,  even  al- 
though the  loan  may  not  have  been  made  directly  to  the  Abi- 
lene Bank,  as,  for  instance,  where  the  securities  belonging 
to  the  Abilene  Bank  came  into  the  possession  of  the  Hanover 
Bank  as  the  result  of  a  rediscounting  of  paper  of  the  Abilene 
Bank.  Conclusive  as  we  think  are  the  reasons  just  stated, 
they  are  additionally  fortified  by  the  considerations  which 
the  lower  court  so  cogently  pointed  out  in  the  opinion  by  it 
announced,  that  is,  that  the  contract  was  one  prepared  by 
the  Hanover  Bank  and  embodied  in  a  printed  form  in  general 
use  by  that  bank,  and  therefore  should  have  expressed  its 
purpose  beyond  doubt  and  not  ambiguously  if  the  language 
in  question  was  intended  to  convey  the  far-reaching  meaning 
now  sought  to  be  attributed  to  it. 

3.  Was  there  otherwise  a  right  of  retention  by  the  authority  or 
consent  of  the  Abilene  Bank? 

By  its  answer,  the  Hanover  Bank  based  its  claim  of  right 
to  retain  the  notes  in  question  solely  upon  its  general  bank- 
ers' lien  and  the  written  collateral  agreement.  The  letters 
to  the  Abilene  Bank,  coupled  with  the  statement  of  its  vice- 
president,  make  plain  the  fact  that  the  sole  reliance  of  the 
Hanover  Bank  in  asserting  a  claim  upon  the  notes  was,  in  re- 
ality, the  written  agreement.  Thus,  by  its  communication  of 
January  12,  1905,  confirming  the  telegram  advising  that  the 
Logan  and  Hayden  notes  would  not  be  discounted,  the  Han- 
over informed  the  Abilene  that  it  held  the  notes  as  collateral 
for  the  indebtedness  of  the  Abilene.  Again,  on  the  seventeenth 
of  the  same  month,  following  the  allowance  of  the  overdraft. 


HANOVER  NATIONAL  BANK  v.  SUDDATH.      121 
215  U.  S.  Opinion  of  the  Court. 

the  New  York  bank  wrote:  "As  your  account  showed  over- 
drawn to-day  over  $3,000  we  have  made  you  a  temporary 
loan  of  $3,500  against  collateral  m  our  hands."  And  the 
belief  of  the  vice-president,  that  the  Hanover  Bank  was  en- 
titled to  hold  the  four  notes  as  collateral  which  led  to  the 
allowance  of  the  overdraft,  is  clearly  shown  by  the  record  to 
have  been  induced  by  the  terms  of  the  collateral  agreement, 
which  he  at  the  time  inspected.  It  may  well  be  that  the  check 
of  January  11,  1905,  for  $3,825.45  was  issued  in  the  expecta- 
tion that  it  would  be  paid  from  the  proceeds  of  the  Logan 
note  of  $2,000  and  the  Hayden  note  of  $3,000,  forwarded  for 
discoimt  on  January  9  and  10.  But  these  and  the  subsequent 
notes  were  not  sent  to  be  held  as  collateral  security,  but  to 
be  discounted.  The  Abilene  Bank  had  been  notified  by  tele- 
gram not  only  that  the  Logan  and  Hayden  notes  would  not  be 
discounted,  but  that  it  should  either  transfer  credits  from 
other  banks  or  ship  currency.  The  information  plainly  con- 
veyed by  this  notificatioii  was  that  checks  drawn  upon  the 
faith  of  the  discount  of  the  notes  referred  to  must  be  protected 
with  funds  to  be  furnished.  In  reason,  the  Hanover  Bank 
was  not  entitled  to  act  upon  the  assumption  that  the  inaction 
of  the  Abilene  Bank  was  equivalent  to  a  request  to  pay  the 
drafts  as  presented  and  to  hold  as  collateral  the  notes  which 
had  been  sent  for  discount.  The  Hanover  Bank  should,  on  the 
contrary,  in  view  of  the  action  of  the  Abilene  Bank,  have 
assumed  the  possibility  that  funds  could  not  be  supplied,  and 
that  the  Abilene  Bank  might  therefore  be  unable  to  meet  its 
paper  and  be  compelled  to  cease  business.  It  is  apparent  that 
the  Hanover  Bank  in  allowing  the  overdraft  did  not  act  upon 
the  assmnption  that  the  possession  merely  of  the  notes  justi- 
fied its  reliance  upon  them  as  a  security  for  the  advance.  We 
say  this  because  the  record  leaves  no  doubt  that  the  device 
of  a  temporary  loan  in  order  to  secure  the  payment  of  the 
overdraft  was  resorted  to  upon  the  faith  of  rights  supposed 
to  inhere  in  the  written  agreement.  There  is  no  basis,  there- 
fore, for  the  contention  that  from  the  circumstances  of  the 


122  OCTOBER  TERM,  1909. 

Argument  for  Appeflant.  215  U.  8. 

overdnft  and  the  poflBeasicm  ci  the  notes  a  ri^st  of  reten- 
tion existed  created  by  authcHity  or  c<Hi8ent  of  the  Aldene 

Bank. 

Affirmed, 


hano\t:r  national  bank  of  new  york,  appel- 
lant,  r.  suddath,  as  recei\^r  of  american 
national  bank  of  abilene  (no.  2). 

APPEAL  FROM  THE  CIRCUIT  COmT  OF  APPEALS  FOR  THE  SECOND 

CIRCUIT. 

No.  13.    Argued  April  20,  1909.— Decided  Novonber  29,  1909. 

Where  a  bank,  after  refusiiig  to  discount  ^psper  sent  to  it  by  the  insol- 
vent for  that  purpoflBy  has  retained  the  paper,  it  cannot,  as  against 
genera]  creditors,  set  off  against  that  paper,  or  its  proceeds,  the  bank- 
rupt's overdraft  althou|^  made  after  such  refusal  and  pending  the 
retention  of  the  paper. 

153  Fed.  Rep.  1022,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Percy  S.  Dudley  for  appellant : 

The  Hanover  Bank  was  entitled  in  equity  to  set  off  the  ad- 
vance made  agidnst  the  notes  which  it  held.  Scott  v.  Armr 
strong,  146  U.  S.  499;  Carr  v.  Hamilton,  129  U.  S.  252;  Scam- 
mm  V.  Kimball,  92  U.  S.  362;  Bispham's  Equity,  7th  ed., 
1905,  §  327;  2  Bolles'  Modem  Law  of  Banking,  742;  Rolling 
MUl  v.  Ore  &  Sted  Co.,  152  U.  S.  596,  615;  Schtder  v.  Israel, 
120  U.  S.  506;  Armstrong  v.  Chemical  Bank,  41  Fed.  Rep.  234; 
Bank  v.  Massey,  192  U.  S.  138.  In  New  York  the  set-off 
would  have  been  allowed  under  the  Code.  Fera  v.  Wickham, 
135  N.  Y.  223;  DeCamp  v.  Thompson,  159  N.  Y.  444;  Emjrire 
Feed  Co.  v.  Chatham  Bank,  30  App.  Div.  476;  Thompson  v. 
Kessd,  30  N.  Y.  383;  G.  &  H.  Co.  v.  ffoH,  61  N.  Y.  226,  236; 
Brown  v.  Buckingham,  21  How.  Pr.  190. 


HANOVER  NATIONAL  BANK  v.  SUDDATH  (NO.  2).   123 
215  U.  S.  Opinion  of  the  Court. 

Mr.  Ed/ward  B.  Whitney,  with  whom  Mr.  Francis  F,  Old- 
ham was  on  the  brief,  for  appeUee: 

There  is  no  question  of  set-oflF,  legal  or  equitable,  in  the  case, 
nor  is  there  any  equity  in  the  bUl.  The  receiver's  case  was 
really  one  in  replevin.  N.  Y.  Code  of  Civ.  Pro.,  §§  1718, 1726, 
1730,  and  see  also  §  601;  2  Abbot's  Form  of  Pleading,  869; 
Moffatt  V.  Van  Daren,  4  Bosw.  609;  1  Nichols  N.  Y.  Prac.  972, 
and  cases  cited;  Dinan  v.  Coneys,  143  N.  Y.  544. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

This  is  an  outgrowth  of  a  litigation  between  the  same  par- 
ties, which  we  have  just  decided  in  case  No.  12,  and  we  shall 
therefore  refer  to  the  banks  as  we  did  in  No.  12,  the  one  as 
the  Abilene  Bank  and  the  other  as  the  Hanover  Bank.  On 
October  11,  1906,  in  reversing  the  judgment  entered  in  that 
a<^ion  on  the  first  trial  in  favor  of  the  Hanover  Bank,  the 
Circuit  Court  of  Appeals  observed  (149  Fed.  Rep.  127, 130) : 

"The  contention  for  the  defendant  in  error  that  it  was  en- 
titled to  set  off  or  counterclaim  the  indebtedness  owing  to  it 
by  the  Abilene  Bank  when  the  latter  became  insolvent,  is 
wholly  imtenable.  Such  a  defense  is  not  available  in  an  ac- 
tion at  law  for  conversion,  and,  if  the  defendant  had  any  right 
of  equitable  set-off,  this  should  have  been  asserted  by  a  bill 
in  equity." 

On  November  20,  1906,  as  we  have  seen,  at  the  second  trial 
of  the  action  at  law  the  court  directed  the  jury  to  find  a  ver- 
dict in  favor  of  the  Abilene  Bank.  A  few  days  afterwards  the 
bill  in  this  cause  was  filed  on  behalf  of  the  Hanover  Bank,  the 
receiver  of  the  Abilene  Bank  being  the  defendant,  the  suit^ 
it  is  intimated,  having  been  commenced  because  of  the  state- 
ment made  by  the  Circuit  Court  of  Appeals  in  the  passage 
from  its  opinion  above  quoted.  The  course  of  deahng  between 
the  two  banks,  the  execution  of  the  written  agreement,  the 
forwarding  of  the  four  notes  for  discount,  the  refusal  to  dis- 
count, the  overdrawing  by  the  Abilene  Bank  of  its  account 


124  OCTOBER  TERM,  1909. 

Opinion  d  the  Court.  215  U.  8. 

with  the  Hanover  Bank,  the  allowance  of  the  overdraft  and 
the  temporary  loan  of  $3,500;  the  collection  of  three  of  the 
notes  and  retention  of  a  sufficient  sum  to  cancel  the  indebted- 
ness created  by  the  overdraft  and  the  surrender  of  the  balance 
to  the  receiver,  together  with  the  uncollected  note,  were  al- 
leged in  the  bill  substantially  as  we  have  stated  them  in  the 
opinion  in  No.  12.  The  coiiimencement  and  prosecution  of 
the  action  at  law  was  next  averred  and  the  various  steps  in 
that  litigation  were  detailed,  culminating  in  an  averment  of 
the  rendering  upon  the  second  trial  of  the  action  at  law  of  a 
verdict  in  favor  of  the  Abilene  Bank  for  $3,725.86.  It  was 
charged  that  the  receiver  was  threatening  to  enter  judgment 
upon  the  verdict.  Averring  a  right  in  equity  to  offset  the 
indebtedness  due  to  it  by  the  Abilene  Bank  on  January  18, 
1905,  against  the  demand  of  that  bank  or  its  receiver  for  the 
four  notes  or  their  proceeds,  the  Hanover  Bank  prayed  that 
its  set-off  might  be  allowed  against  the  receiver,  and  that  he 
be  enjoined  from  further  prosecuting  the  action  at  law.  A 
demurrer  to  the  bill  was  sustained  and  a  dismissal  was  en- 
tered. The  decree  was  affirmed  by  the  Circuit  Court  of  Ap- 
peals (153  Fed.  Rep.  1022),  and  the  cause  was  then  brought 
here. 

The  decision  just  announced  in  case  No.  12  establishes  the 
want  of  equity  in  the  bill.  The  mere  possession  of  the  notes 
by  the  Hanover  Bank  after  its  refusal  to  discount  them  did 
not  justify  that  bank  in  relying  upon  the  notes  as  collateral 
security  for  the  indebtedness  which  arose  from  the  voluntary 
payment  of  the  draft  drawn  by  the  Abilene  Bank  upon  the 
Hanover  Bank,  when  there  were  no  funds  in  the  latter  bank 
to  meet  the  draft.  The  notes  forwarded  January  9  and  10 
were  sent  to  be  discounted,  and  the  draft  drawn  on  January  11, 
which  created  the  overdraft,  was  presumably  drawn  upon 
the  faith  that  those  notes  would  be  discounted,  and  that  the 
draft  would  be  paid  out  of  the  proceeds.  As  matter  of  fact, 
however,  the  Hanover  Bank  recouped  itself  out  of  the  proceeds 
of  but  one  of  the  notes,  together  with  the  proceeds  of  notes 


KENNEY  V,  CRAVEN.  125 

215  U.  8.  Syllabus. 

subsequently  forwarded  to  it.  In  view  of  the  fact  that  the 
Hanover  Bank  not  only  notified  the  Abilene  Bank  that  the 
notes  would  not  be  discounted,  but  also  by  telegram  in  effect 
demanded  that  the  Abilene  Bank  should  forward  funds  to 
meet  its  drafts,  the  assumption  cannot  be  rightfully  indulged 
that  the  Hanover  Bank  allowed  the  overdraft  in  the  belief 
that  the  silence  of  the  Abilene  Bank  signified  that  it  expected 
the  draft  to  be  paid,  and  that  to  enable  the  payment  the 
Hanover  Bank  might  use  the  notes  sent  for  discount  as  it  saw 
fit.  It  is  not  contended  that  there  was  an  express  agreement 
between  the  parties  that  the  draft  which  created  the  overdraft 
should  be  paid,  and  that  the  funds  should  be  realized  in  the 
mode  pursued  by  the  Hanover  Bank.  Considering  the  trans- 
action either  from  the  standpoint  of  the  forwarding  of  the 
notes  for  discount  and  the  making  of  the  draft,  or  from  the 
standpoint  of  the  sending  of  the  notes  for  discount,  and  the 
failure  of  the  Abilene  Bank  to  forward  funds  or  to  promptly 
make  known  to  the  Hanover  Bank  its  wishes  in  the  matter, 
we  are  of  the  opinion  that  the  circumstances  of  the  transac- 
tion were  not  such  as  to  raise  the  presumption  of  agreement 
for  a  set-off  available  as  against  the  general  creditors.   Scott  v. 

Armstrong,  146  U.  S.  499. 

Affirmed, 


•*0*- 


KENNEY  V,  CRAVEN.* 

ERROR  TO  THE  SUPERIOR  COURT  OF  THE  STATE  OF 

MASSACHUSETTS. 

No.  31.    Argued  November  12, 1909.~Decided  November  29, 1909. 

The  determination  by  a  state  court  that  a  purchaser  pendente  lite  from 
the  trustee  of  a  bankrupt  is  bound  by  the  decree  against  the  trustee 
in  the  action  of  which  he  has  notice  gives  effect  to  such  decree  under 

*  Docket  title  originally  Corbett  v.  Craven.  Death  of  plaintiff  in  error 
suggested,  and  Kenney  and  McVey,  special  administrators,  substituted 
November  11,  1909. 


126  (XrrOBER  TERM,  1909. 

Statement  of  the  Gaae.  215  U.  8. 

the  principles  of  general  law;  and  if,  as  in  this  case,  it  does  not  in- 
volve passing  on  the  nature  and  character  of  the  rights  of  the  parties 
arising  from  the  transaction  of  purchase  and  sale,  no  Federal  question 
is  involved. 
Writ  of  error  to  review  196  Massachusetts,  319,  dismissed. 

James  Connor,  a  manufacturer  of  woolen  cloth,  operating 
two  mills  located  in  Holyoke,  Massachusetts,  sold  to  Michael 
Craven  machinery  contained  in  the  mills  and  evidenced  the 
same  by  three  bills  of  sale  executed  respectively  on  October  12, 
1883,  April  6,  1885,  and  March  10, 1891.  On  June  18, 1901, 
Connor  was  adjudicated  a  bankrupt,  and  in  August  following 
Nathan  B.  Avery  was  appointed  trustee.  In  the  same  month 
Avery,  as  trustee,  commenced  a  suit  in  equity  in  a  state  court  of 
Massachusetts,  and  therein  assailed  the  validity  of  the  bills  of 
sale  to  Craven,  above  referred  to,  and  prayed  that  they  might 
be  set  aside  and  the  property  decreed  to  belong  to  the  estate  of 
the  bankrupt.  While  that  suit  was  pending  and  on  Septem- 
ber 18,  1901,  Avery,  trustee,  sold  to  William  J.  Corbett,  as 
part  of  the  bankrupt  estate,  certain  of  the  machinery  situated 
in  the  mills  already  referred  to.  In  1905  Corbett  brought  this 
action  against  Craven  to  recover  from  him  the  value  of  the 
machinery  so  as  aforesaid  transferred  to  him  by  Avery,  trus- 
tee, alleging  that  Craven  had  taken  possession  of  and  con- 
verted the  property  sued  for  to  his  own  use.  Dxuing  the 
pendency  of  the  action  the  equity  cause  was  decided,  and,  after 
the  entry  of  the  decree  therein,  an  amended  answer  was  filed 
in  this  action.  Therein,  in  addition  to  a  general  denial,  the 
decree  in  the  equity  suit  in  favor  of  Craven  was  specially 
pleaded  in  bar,  and  it  was  averred  that  the  title  and  right  of 
possession  of  the  property  in  controversy  in  this  action  was  in 
issue  in  said  equity  cause  and  had  been  adjudicated  by  the 
decree  to  be  in  Craven.  An  auditor  was  appointed  "to  hear 
the  parties,  to  examine  their  vouchers  and  evidence,  to  state 
the  accounts,  and  make  report  thereof  to  the  court."  After 
the  taking  of  evidence  had  been  concluded  the  auditor  filed  a 
lengthy  report,  in  which  were  embodied  numerous  findings  of 


KENNEY  V,  CRAVEN.  127 

215  U.  8.  Statement  of  the  Case. 

fact.  On  the  ultimate  issues  the  auditor  found  for  the  plain- 
tiff. As  regards  the  decree  in  the  equity  cause  pleaded  in  bar, 
it  was  found  that  the  title  to  the  property  alleged  in  this  action 
to  have  been  converted  by  the  defendant  Craven  had  not  been 
the  subject  of  litigation  in  the  equity  cause,  and  that  the  de- 
cree in  that  cause  was  not  a  bar  to  a  recovery  by  the  plaintiff. 
The  case  was  then  by  the  court  committed  to  a  jury,  who 
found  for  the  plaintiff,  and  assessed  his  damages  at  $4,696.01. 
The  defendant,  on  exceptions,  carried  the  cause  to  the  Su- 
preme Judicial  Court  of  Massachusetts.  There  the  exceptions 
were  sustained,  upon  the  sole  ground  that  the  decree  in  the 
suit  in  equity  was  a  bar  to  the  claim  of  plaintiff.  Corbett  v. 
Craven,  193  Massachusetts,  30.  Subsequently  in  the  trial 
court  the  plaintiff  was  allowed  to  amend  his  declaration  by 
adding  thereto  the  following  paragraph : 

''And  the  plaintiff  says  that  said  goods  and  chattels  were 
the  property  of  one  James  Connor,  who  was  adjudicated  a 
bankrupt  by  the  District  Court  of  the  United  States  for  the 
District  of  Massachusetts,  June  18,  1901;  that  on  August  3, 
1901,  Nathan  P.  Avery,  of  Holyoke,  was  duly  appointed  trus- 
tee in  bankruptcy  of  the  estate  of  said  Connor;  that  on  Au- 
gust 6, 1901,  the  said  Avery  duly  filed  bond  and  duly  qualified 
as  such  trustee;  that  on  September  18,  1901,  the  said  plaintiff 
acquired  title  to  said  goods  and  chattels  by  purchase  from 
said  Avery  as  trustee  aforesaid,  the  said  Avery  being  duly  au- 
thorized by  said  District  Court  to  make  sale  of  said  goods  and 
chattels;  and  that  the  plaintiff  in  this  action,  relying  upon 
such  title  acquired  as  aforesaid  from  said  Avery,  specially  sets 
up  and  claims  that  said  title  was  acquired  under  an  authority 
exercised  under  the  United  States  within  the  meaning  of 
section  709  of  the  Revised  Statutes  of  the  United  States." 

A  similar  averment  was  also  embodied  in  a  reply  filed  at  the 
same  time  to  that  part,  of  the  answer  of  defendant  which  sets 
up  *'  a  former  judgment  as  a  bar."  Certain  other  matters  were 
also  stated  in  the  replication  in  avoidance  of  the  effect  of  the 
adjudication  in  the  equity  cause,  but  they  need  not  be  par- 


128  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 

ticularly  referred  to,  as  no  contention  based  upon  them  was 
pressed  at  bar  or  called  to  our  attention  in  any  form. 

The  action  was  again  tried  to  a  jury,  who,  by  direction  of  the 
court,  returned  a  verdict  for  the  defendant.  The  cause  was 
again  heard  on  exceptions  in  the  Supreme  Judicial  Court  of 
Massachusetts,  and,  after  consideration  of  the  new  matter 
contained  in  the  replication  to  the  answer,  the  exceptions  were 
overruled.  Corbett  v.  Craven,  196  Massachusetts,  319.  The 
trial  court  thereupon  entered  judgment  on  the  verdict,  and 
this  writ  of  error  was  prosecuted. 

Mr.  Christopher  T.  Callahan  for  plaintiff  in  error: 
As  to  the  jurisdiction :  The  decision  of  the  state  court  that 
the  trustee's  authorized  sale  to  plaintiff  passed  no  title  pre- 
sents a  Federal  question.  It  is  not  as  though  the  state  court 
had  merely  the  question  on  principles  of  general  law.  This 
court  has  jurisdiction.  Scott  v.  Kelley,  22  How.  57;  Mays  v. 
FlUon,  20  Wall.  14;  McHenry  v.  La  SocUU,  95  U.  S.  58;  Davis 
V.  Friedlander,  104  U.  S.  570,  575;  McKenna  v.  Simpson,  129 
U.  S.  506;  Cramer  v.  Wilson,  195  U.  S.  408.  The  state  court's 
rejection  of  the  trustee's  title  rested  not  on  conditions  existing 
at  time  he  acquired  it  but  on  a  subsequent  official  act.  For 
other  cases  in  which  this  court  has  taken  jurisdiction  in  cases 
involving  title  of  persons  holding  under  Federal  authority,  see 
Clements  v.  Berry,  11  How.  398,  408;  Bvck  v.  Colbath,  3  Wall. 
334,  340;  Sharp  v.  Doyle,  102  U.  S.  686;  New  Orleans  R.  R,  v. 
Ddamore,  114  U.  S.  501,  506;  WiUiams  v.  Heard,  140  U.  S.  529, 
535;  Stanley  v.  SchwoXby,  147  U.  S.  508,  519;  Hussman  v. 
Durham,  165  U.  S.  144;  Aldrich  v.  Aetna,  8  Wall.  491;  Du- 
passier  v.  Rochereau,  21  Wall.  130;  O'Brien  v.  Wdd,  92  U.  S. 
81;  Baldwin  v.  Stark,  107  U.  S.  463;  Pittsburg  &c.  R.  R,  v. 
Long  Island  Co,,  172  U.  S.  493;  Publishing  Co,  v.  Beckwith, 
188  U.  S.  567;  Yates  v.  Jones  National  Bank,  206  U.  S.  155, 
167. 

A  Federal  question  is  presented  by  the  contention  that  due 
effect  is  denied  to  a  decree  of  the  Federal  court  in  sustaining 


KENNEY  V.  CRAVEN.  129 

215  U.  8.  Opinion  of  the  Court. 

a  plea  of  res  judicata.    National  Foundry  v.  Oconto  Water  Co,, 
183  U-  S.  216,  distinguishing  Avery  v.  Popper,  179  U.  S,  305. 

Mr,  Charles  G.  Gardner  for  defendant  in  error : 
As  to  the  jurisdiction:  A  Federal  question  is  not  presented 
merely  because  the  plaintiff  claims  title  from  one  who  derives 
his  authority  to  sell  from  a  Federal  statute.  Blackburn  v.  Port- 
land Mining  Co.,  175  U.  S.  571,  579;  Continental  Bank  v.  Bu- 
ford,  191  U.  S.  119,  125. 

Mr.  Justice  Whtte,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

The  assertion  that  this  court  has  jurisdiction  is  based  upon 
the  contention  of  the  plaintiff  in  error  that  he  specially  set  up 
in  his  replication  filed  below  a  title  acquired  under  an  au- 
thority exercised  under  the  United  States,  that  is,  a  purchase 
of  property  from  a  trustee  in  bankruptcy  under  the  sanction 
of  the  bankruptcy  court,  and  that  such  title  was  denied  by  the 
decision  of  the  state  court.  We  are  not  called  upon  to  con- 
sider these  propositions  from  a  purely  abstract  point  of  view, 
since,  of  course,  we  are  only  required  to  determine  their  im- 
port in  so  far  as  they  are  involved  in  the  decision  of  the  ques- 
tion arising  on  the  record.  Confining  our  contemplation  to 
that  subject  it,  we  think,  becomes  clear  that  the  contentions 
are  wholly  irrelevant  to  the  question  of  jurisdiction  concerning 
which  they  are  advanced  and  relied  on.  We  say  this,  because 
it  is  obvious  on  the  face  of  the  record  that  the  court  below 
rested  its  decision  solely  on  the  ground  that  the  plaintiff,  as  a 
purchaser  pendente  lite  from  the  trustee,  was  bound  by  the 
decree  rendered  against  the  trustee  in  the  equity  cause,  and 
that,  giving  to  that  decree  the  effect  which  it  was  entitled  to 
have  as  the  thing  adjudged,  under  general  principles  of  law 
it  operated  to  estop  the  trustee  and  the  plaintiff,  his  privy, 
from  asserting  title  to  the  property.  As,  therefore,  the  court 
below  did  not,  as  an  original  question,  consider  and  pass  upon 
VOL.  ccxv — 9 


130  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

the  nature  and  character  of  the  rights  of  the  parties  arising 
from  the  transaction  of  purchase  and  sale,  but  its  judgment 
was  solely  based  upon  the  operation  and  effect  of  the  prior 
judgment  between  the  parties  or  their  privies,  it  follows  that 
the  decision  of  the  case  was  placed  upon  no  Federal  ground 
but  involved  solely  the  decision  of  a  question  of  general  law, 
that  is,  the  effect  and  scope  of  the  thing  adjudged  as  arising 
from  the  prior  judgment  of  the  state  court.  Chouteau  v. 
Gibson,  111  U.  S.  200;  San  Francisco  v.  ItseU,  133  U.  S.  65; 
Covington  v.  First  Nat,  Bank,  198  U.  S.  100,  107.  Indeed  the 
fallacy  underlying  all  the  contentions  urged  in  favor  of  our 
jurisdiction  and  the  arguments  of  inconvenience  by  which 
those  propositions  are  sought  to  be  maintained,  in  their  ulti- 
mate conception  involve  the  assumption  either  that  the  cor- 
rectness of  the  state  decree,  which  was  held  to  be  res  jvdicataf 
is  open  for  consideration  on  this  record,  or  assail  the  con- 
clusively settled  doctrine  that  the  scope  and  effect  of  a  state 
judgment  is  peculiarly  a  question  of  state  law,  and  therefore 
a  decision  relating  only  to  such  subject  involves  no  Federal 
question. 

Dismissed  for  ward  of  jurisdiction. 


THE  STEAMSHIP  JEFFERSON.^ 

APPEAL  FROM  THE  DISTRICT  COURT  OF  THE  liNITED  STATES  FOR 

THE  EASTERN  DISTRICT  OF  VIRGINIA. 

No.  243.    Submitted  May  17,  1909.— Decided  November  29,  1909. 

Where  the  District  Court  has  allowed  an  appeal,  but  has  not  certified 
that  the  question  of  jurisdiction  alone  was  involved,  as  required  by 
§  5  of  the  act  of  March  3, 1891,  c.  517, 26  Stat.  826,  if  it  appears  from 
the  face  of  the  record,  irrespective  of  recitals  in  the  order,  that  the 

^  Docket  title,  Simmons,  late  Master  of  the  Tug  Helen,  and  Others, 
r.  The  Steamship  Jefferson,  The  Old  Dominion  Steamship  CJompany, 
Claimant  and  Owner. 


THE  STEAMSHIP  JEFFERSON.  131 

215  U.  S.  Argument  for  Appellanto. 

cause  was  dismissed  for  want  of  jurisdiction,  the  question  of  juris- 
diction, if  it  is  of  such  a  character  as  to  sustain  the  appeal,  is  suf- 
ficiently certified.    United  States  v.  Larkin,  208  U.  S.  333. 

Where  the  case  is  dismissed  because  the  character  of  the  action  is  one 
cognizable  exclusively  by  a  court  of  admiralty  and  the  jiuisdiction 
is  challenged  because  the  situation  of  the  vessel  and  the  character 
of  the  services  rendered  afforded  no  jurisdiction  in  admiralty,  the 
jurisdiction  of  the  court  as  a  Federal  court  is  involved  and  the  case 
is  one  cognizable  by  this  court  under  }  5  of  the  act  of  1891. 

Salvage  service,  over  which  a  court  of  admiralty  has  jurisdiction,  may 
arise  from  all  perils  which  may  encompass  a  vessel  when  on  waters 
within  the  admiralty  jurisdiction  of  the  United  States,  and  this  in- 
cludes services  rendered  to  a  vessel  undergoing  repairs  in  dry  dock 
and  in  danger  of  being  destroyed  by  fire  which  originated  on  land. 

A  vessel  used  for  navigation  and  commerce  does  not  cease  to  be  a  sub- 
ject of  admiralty  jurisdiction  because  temporarily  in  a  dry  dock 
without  water  actually  flowing  around  her. 

158  Fed.  Rep.  255,  reversed. 

The  facts,  which  involved  the  jurisdiction  of  the  admiralty 
court  of  a  case  for  salvage  services  rendered  to  a  vessel  in  dry 
dock  and  in  peril  from  a  fire  originating  on  land,  are  stated  in 
the  opinion. 

Mr.  R.  T.  Thorp,  Mr.  Henry  Bowden  and  Mr.  D.  Lawrence 
Groner  for  appellants : 

The  jurisdictional  question  is  properly  certified.  Shields  v. 
Coleman,  157  U.  S.  176;  Interior  Construction  Co.  v.  Gibney, 
160  U.  S.  217;  ChappeU  v.  United  States,  160  U.  S.  499;  Mer- 
riU  V.  Bov)doin  College,  167  U.  S.  745;  FilMol  v.  Forney,  194 
U.  S.  356;  Petri  v.  Creelman,  199  U.  S.  487;  Excelsior  Co.  v. 
Pacific  Bridge  Co.,  185  U.  S.  282.  The  jurisdiction  of  the 
Federal  court  was  denied  as  such.  Dudley  v.  Lake  County, 
103  Fed.  Rep.  209;  Sun  Printing  Co.  v.  Edwards,  121  Fed. 
Rep.  826.  A  vessel  is  not  removed  from  admiralty  jurisdic- 
tion because  at  the  time  it  is  in  dry  dock,  for  such  jurisdiction 
depends  not  on  whether  the  vessel  is  actually  afloat  but  on  the 
purposes  for  which  it  is  used.  The  Old  Natchez,  9  Fed.  Rep. 
476.    So  also  admiralty  does  not  lose  jurisdiction  over  a  naviga- 


132  OCTOBER  TERM,  1909. 

Argument  for  Appellee.  215  U.  S. 

ble  river  because  at  times  the  river  becomes  imnavigable.  Nd- 
son  V.  Lelandy  22  How.  18.  Although  a  dry  dock  itself  may 
not  be  a  subject  of  salvage  service,  Cope  v.  Vedette  Dry  Dock 
Co.,  119  U.  S.  625,  as  to  repairs  in  dry  dock,  see  Perry  v. 
Haines;  191  U.  S.  17;  Simpson's  Dock  v.  Steamship  Co.,  108 
Fed.  Rep.  425;  The  Sapho,  44  Fed.  Rep.  359;  Hoffner  v. 
Crane,  115  Fed.  Rep.  404;  United  States  v.  Coombs,  12  Pet. 
72.  That  the  fire  originated  on  land  is  immaterial;  vessels 
afloat  saved  by  being  towed  from  a  land  fire  are  subject  to 
salvage.  Kaiser  Wilhdm  der  Grosse,  106  Fed.  Rep.  963; 
The  J,  I.  Brady,  109  Fed.  Rep.  912;  The  Barge  No,  127,  113 
Fed.  Rep.  529;  The  Old  Natchez,  9  Fed.  Rep.  476;  The  Lone 
Star,  35  Fed.  Rep.  793;  Gnnby  v.  The  Khio,  46  Fed.  Rep.  207; 
The  Oregon,  27  Fed.  Rep.  871;  Wilson  v.  Winchester,  30  Fed. 
Rep.  204.  Admiralty  jurisdiction  extends  to  a  salvage  suit 
for  services  rendered  from  land  to  a  vessel  burning  at  a  wharf. 
The  HuntsmUe,  12  Fed.  Gas.  No.  6,916;  and  see  The  EUa,  48 
Fed.  Rep.  569,  as  to  salvage  for  digging  out  vessel  which  had 
been  driven  ashore. 

Mr.  Walter  H.  Taylor  and  Mr.  Harrington  Putruim  for  ap- 
pellee : 

This  court  is  without  jurisdiction.  The  appeal  should  have 
been  taken  to  the  Circuit  Court  of  Appeals.  If  to  this  court 
it  is  not  properly  certified  \mder  §  5  of  the  act  of  1891.  Louis- 
ville Trust  Co.  V.  Knott,  191  U.  S.  225;  Smith  v.  McKay,  161 
U.  S.  358;  Maynard  v.  Hechl,  151  U.  S.  324;  Blyihe  Co.  v, 
Blythe,  172  U.  S.  644;  ScAw;e«r  v.  Brown,  195  U.  S.  171. 

The  decision  below  was  correct  and  the  libel  properly  dis- 
missed. Quenching  a  fire  on  a  ship  in  emptied  dry  dock  is  not 
a  basis  of  salvage.  The  Warfield,  120  Fed.  Rep.  847;  The 
Robt.  W.  Parsons,  191  U.  S.  17.  The  Jefferson  was  not  saved 
from  a  peril  of  the  sea.  1  Parson's  Mar.  Ins.,  544;  Phillips 
V.  Barber,  5  B.  &  Aid.  161;  Frame  v.  EUa,  48  Fed.  Rep.  569. 

The  property  salved  must  be  a  vessel  engaged  in  commerce  or 
the  cargo  of  a  vessel .    The  Murphy  Tugs,  28  Fed.  Rep.  429 ;  The 


THE  STEAMSHIP  JEFFEKSON.  133 

315  U.  S.  Ophiioa  of  the  Ck>urt. 

Island  City,  1  Lowell,  375;  The  Pulaski,  33  Fed.  Rep.  383;  The 
Hendrick  Hudson,  3  Benedict,  419;  S.  C,  Fed.  Cas.  No.  6,355. 

Salvage  is  only  awarded  for  saving  property  from  sea  perils. 
Mason  v.  Ship  Blaireau,  2  Cranch,  240,  266;  Benedict's  Ad- 
miralty, 3d  ed.,  §  300;  TA^  Emviaus,  1  Sumner,  207;  2  Kent's 
Com.,  *245;  Desty's  Shipping  and  Admiralty,  §303;  Af. 
Benefante,  5  Revue  Int.  du  Droit  Maritime,  568;  Schaps  Das 
Deutsche  Seerecht,  701;  Sieveking,  Gennan  Law  Relating  to 
Carriage  of  Goods  by  Sea,  Eng.  trans.,  p.  145;  The  Merchant 
Prince,  Hanseatische  Gerichszeitung,  1888,  Part  I,  No.  120, 
p.  276;  Burchard  on  Salvage,  Hanover,  1897,  p.  29. 

English  courts  before  1821,  could  not  award  salvage  for 
services  between  high  and  low  water  mark.  11  Ency.  Laws 
of  Eng.,  368;  Benedict's  Adm.,  §  111;  Kennedy,  Law  of  Civil 
Salvage,  2d  ed.,  p.  2.  In  England  and  the  United  States  the 
question  of  locality  is  important  as  admiralty  courts  alone 
can  award  salvage.  Ex  parte  Boston,  95  U.  S.  68;  50,000  Feet 
of  Lumber,  2  Lowell,  64.  Fire  originating  on  land  is  not  a  sea 
peril.  The  Plymouth,  3  Wall.  20;  and  as  to  adhering  to  ancient 
limits  of  admiralty  jurisdiction,  see  Cleveland  Terminal  Co,  v. 
Steamship  Co.,  208  U.  S.  315;  The  Troy,  208  U.  S.  321;  The 
Poughkeepsie,  162  Fed.  Rep.  494;  Adm.  Juris,  of  Torts  by 
Mr.  Justice  Brown  in  Columbia  Law  Review,  January,  1909. 

In  the  absence  of  sea  perils  claims  for  salvage  rewards  are 
against  public  policy  and  the  tendency  of  later  cases  is  not 
to  enlarge  but  to  restrict  the  subjects  of  salvage.  Gas  Float 
Whittan,  App.  Cos.  [1897],  337;  Cope  v.  VaUette  Dry  Dock, 
119  U.  S.  625;  Hughes'  Handbook  of  Admiralty,  129.  Ship- 
owners' suits  against  owners  of  dry  docks  for  injuries  on  the 
dock  depend  for  admiralty  jurisdiction  on  maritime  nature  of 
contract  and  on  locality.  The  Sapho,  48  Fed.  Rep.  359;  Wait- 
man  V.  Griffiths,  3  Blatchf  ord,  528 ;  but  see  The  Professor  Morse, 
23  Fed.  Rep.  803. 

Mr.  Justice  Whtfe  delivered  the  opinion  of  the  court. 
From  a  decree  dismissing  this  smt  for  want  of  jurisdiction 


134  OCTOBER  TERM,  1909. 

Opiiiioii  of  the  Court.  215  U.  S. 

the  present  direct  appeal  is  prosecuted.  Dismissal  of  the  ap- 
peal is  moved  on  the  ground  that  the  jurisdiction  of  the  court 
below  was  not  involved  in  the  sense  of  the  fifth  section  of  the 
act  of  March  3,  1891,  c.  517,  26  Stat.  826,  and,  in  any  event, 
because  the  question  of  jurisdiction  was  not  certified  as  re- 
quired by  that  act. 

The  libel  by  which  the  suit  was  commenced  was  filed  on 
behalf  of  the  master  of  the  tug  Helen,  for  himself  and  others 
entitled  to  participate,  in  a  salvage  allowance  if  made.  The 
cause  of  action  was  thus  stated : 

''  1.  That  in  the  afternoon  of  the  twenty-fifth  day  of  De- 
cember, 1906,  the  tug  Helen  whereof  said  E.  W.  Simmons  was 
Master,  and  having  a  crew  of  six  men  besides  said  master,  was, 
together  with  the  tug  AUce,  towing  a  certain  barge  from  Nor- 
folk, in  said  district,  to  the  piers  of  the  Chesapeake  and  Ohio 
Railway  Company  at  Newport  News,  in  said  district;  that 
about  foiu-  or  foiu'-thirty  o'clock  on  said  day,  when  said  tugs 
had  arrived  almost  at  their  destination  at  Newport  News, 
it  was  discovered  that  a  fire  was  raging  in  the  ship  yard  of  the 
Newport  News  Ship  Yard  and  Dry  Dock  Company,  and  there- 
upon the  libellant,  with  the  said  tug  Helen,  docked  his  tow 
at  one  of  the  said  piers  of  the  Chesapeake  and  Ohio  Railway 
Company,  and  proceeded  with  all  possible  speed  to  the  said 
fire: 

''  2.  That  when  libellant  arrived  at  the  said  ship  yard  it  was 
found  that  a  large  and  fierce  fire  was  raging  therein  and  that 
said  steamship  Jefferscm,  which  had  been  undergoing  repairs 
at  the  said  ship  yard,  was  locked  in  one  of  the  dry  docks  out 
of  which  the  water  had  been  emptied,  and  was  afire,  her  upper 
works  being  then  in  full  Uaie  and  her  huU  smoking  through- 
out neariy  its  whole  length;  that  there  was  no  one  on  board  at 
the  time  and  no  one  could  ha>-e  stayed  aboard  under  the  cir- 
cumstances: that  the  water  [Hpes  intended  for  the  use  of  the 
fire  department  were  froien  up  and  there  was  no  water  avail- 
able for  their  use,  and  that  this,  together  with  the  fact  that 
the  Jefferson  was  in  a  peculiar  and  inaccessible  situation  being 


THE  STEAMSHIP  JEFFERSON.  135 

215  U.  8.  Opinion  of  the  Court. 

in  a  dry  dock,  rendered  the  fire  engines  and  fire  department 
totally  unable  to  render  any  assistance  whatsoever;  under 
which  circumstances  said  steamer  would  have  been  completely 
destroyed  but  for  the  assistance  rendered  by  libellant  and 
other  salvors  hereinafter  mentioned : 

''3.  That  thereupon  libellant  with  his  said  tug  Helen  and 
crew  lay  at  a  bulkhead  of  one  of  the  piers  as  close  to  the  said 
dry  dock  as  possible,  and  together  with  the  tugs  Alice  and 
James  Smith,  Jr.,  played  streams  of  water  from  their  fire  hose 
upon  said  steamship  Jefferson,  and  continued  so  to  do  until 
the  fire  was  completely  extinguished;  that  libellant  and  other 
salvors  were  thus  engaged  from  about  four-thirty  o'clock  in 
the  afternoon  of  said  day  until  about  eight-thirty  o'clock  at 
night,  during  all  of  which  time  libellant  and  said  salvors 
rendered  every  possible  assistance  to  said  steamship,  and 
during  all  of  which  time  libellant  and  others  entitled  as  salvors 
as  aforesaid,  underwent  great  suffering  from  smoke,  flame 
and  sparks,  and  endured  great  hardship  from  exposure  to  the 
wind  and  water  in  the  bitter  coldness  of  the  weather,  and 
libellant  and  other  salvors  incurred  great  danger  from  said 
smoke,  flames  and  sparks,  and  from  electric  wires,  falling 
poles,  adjacent  burning  bmldings,  etc. 

"4.  That  the  said  steamship  Jefferson  is  of  great  value; 
that  the  aforementioned  efforts  and  services  rendered  by 
libellant  and  other  salvors  saved  the  said  steamship  from 
total  and  complete  destruction;  that  libellant,  by  reason  of 
the  hardships  necessarily  incurred,  and  especially  by  reason  of 
the  nature  and  the  great  importance  of  the  services  rendered 
in  saving  said  steamship,  reasonably  deserved  to  have,  and 
therefore  claim  a  commensurate  reward  for  salvage  therefor." 

By  an  intervening  petition  the  crew  of  the  tug  Helen  and 
the  masters  and  crews  of  two  other  tugs,  the  James  Smith,  Jr., 
and  the  Alice,  asserted  claims  to  salvage,  on  the  groimd  that 
they  had  rendered  services  at  the  same  time  and  under  the 
same  conditions  as  those  which  the  libel  alleged  had  been 
rendered  by  the  Helen.    The  libel  and  intervening  petition 


136  OCTOBER  TERM,  1909. 

OpinioD  of  the  Court.  215  U.  S. 

were  excepted  to  by  the  owner  and  claimant  of  the  Jefferson 
upon  these  grounds : 

"First.  That  the  property  proceeded  against  was  not  at 
sea  or  on  the  coast  of  the  sea  or  within  public  navigable 
waters  or  on  the  shores  thereof. 

"Second.  That  the  property  proceeded  against  was  not  a 
vessel  engaged  in  maritime  commerce. 

"Third.  That  the  libellants  did  not  render  any  service  at 
sea  or  in  saving  property  from  any  peril  of  the  sea. 

"Fourth.  That  there  is  not  shown  any  sea  peril  or  such 
peril  as  may  be  the  basis  of  a  claim  for  salvage. 

"  Fifth.  That  the  Jefferson  while  in  a  dry  dock,  from  which 
all  the  water  had  been  emptied,  when  threatened  with  fire 
from  land  was  not  a  subject  of  salvage  services. 

"Sixth.  That  there  is  not  shown  any  admiralty  or  mari- 
time lien  upon  the  Jefferson  in  favor  of  the  libellants  for 
salvage." 

The  court,  on  January  14,  1908,  handed  down  an  opinion, 
stating  its  reasons  for  concluding  that  the  exceptions  were 
well  taken,  and  hence  that  it  had  no  jurisdiction  over  the 
cause.  158  Fed.  Rep.  358.  On  the  twenty-ninth  of  the  same 
month  a  final  decree  was  entered  dismissing  the  libel  and 
intervening  petitions.    In  this  decree  rt  was  recited: 

"The  court  is  of  opinion,  for  the  reasons  stated  in  the 
opinion  filed  on  the  fourteenth  day  of  January,  1908,  that 
it  is  without  jurisdiction  in  the  premises  and  that  the  excep- 
tions should  be  sustained.     .     .    ." 

In  the  following  July  the  present  appeal  was  prayed  on 
the  ground  that,  as  the  court  had  dismissed  the  case  for  want 
of  jurisdiction,  its  action  was  susceptible  of  review  by  direct 
appeal  to  this  court.  In  its  order  allowing  the  appeal  the 
court  stated  that  "the  claim  of  appeal  is  allowed  as  prayed 
for  from  the  final  order  and  decree  dismissing  said  cause  for 
want  of  jurisdiction.  .  .  ."  As  upon  the  "face  of  the 
record,  irrespective  of  the  recitals  in  the  order  made  on  the 
allowance  of  the  appeal,  it  is  apparent  that  the  only  question 


THE  STEAMSHIP  JEFFERSON  137 

215  U.  S.  Opinion  of  the  Court. 

which  was  decided  below  was  one  of  jurisdiction^  and  as  the 
decree,  which  was  appealed  from,  on  its  face  shows  that  the 
cause  was  dismissed  for  want  of  jurisdiction,  the  question  of 
jurisdiction,  if  it  is  of  such  a  character  as  to  sustain  the  appeal, 
was  suflBciently  certified.  United  States  v.  Larkin,  208  U.  S. 
333,  338.  We  therefore  put  the  contentions  as  to  the  absence 
of  a  certificate  out  of  view. 

It  is  settled  that,  under  the  act  of  1891,  in  orJcr  to  entitle 
to  a  direct  appeal  from  the  decree  of  a  District  or  Circuit  Court 
dismissing  a  cause  for  want  of  jurisdiction,  the  decree  which  is 
sought  to  be  reviewed  must  have  involved  the  jurisdiction 
of  the  court  below  as  a  Federal  court.  Louisville  Trust  Co.  v. 
Camingar,  184  U.  S.  18;  Schweer  v.  Brovm,  195  U.  S.  171. 
Relying  upon  this  doctrine,  the  contention  is  that  the  appeal 
was  wrongfully  allowed,  because,  although  it  may  be  that  in 
form  of  expression  the  court  below  dismissed  the  suit  for  want 
of  jurisdiction,  its  action  was,  in  substance,  alone  based  upon 
the  conclusion  that  the  facts  alleged  were  insuflBcient  to  au- 
thorize recovery,  even  although  the  cause  was  within  the 
jurisdiction  of  the  court.  The  claim  which  the  libel  asserted 
was  for  salvage  compensation,  and  it  therefore  presented  a 
character  of  action  cognizable  exclusively  by  a  court  of  ad- 
miralty of  the  United  States.  Houseman  v.  The  Cargo  of  the 
Schooner  North  Carolina,  15  Pet.  40,  48.  It  is  clear  that  th6 
exceptions  to  the  libel  and  intervening  petition  challenged 
the  jurisdiction  of  the  court  over  the  cause  of  action  which 
the  libel  asserted,  because,  from  the  situation  of  the  vessel, 
the  place  where  the  alleged  salvage  services  were  rendered,  and 
the  nature  and  character  of  those  services,  they  afforded  no 
basis  for  the  jurisdiction  of  the  court  as  a  court  of  admiralty 
of  the  United  States.  That  this  was  also  the  conception  upon 
which  the  court  below  acted  in  dismissing  the  libel  and  inter- 
vening petition  is  apparent  from  its  opinion  and  the  terms  of 
the  decree  which  we  have  previously  referred  to.  After  stat- 
ing the  elements  constituting  a  salvage  service,  the  court  ob- 
served (158  Fed.  Rep.,  p.  359) : 


138  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"These,  however,  have  relation  to  perils  encountered  and 
services  rendered  and  performed  to  vessels  actually  engaged 
in  commerce,  either  on  the  high  seas  or  other  public  navi- 
gable waters.  .  .  The  Jefferson,  at  the  time  of  the 
service  sued  for,  was  not  a  medium  of  commerce  subject  to 
dangers  and  hazards  of  the  sea.  She,  on  the  contrary,  was  in 
an  imseaworthy  condition,  undergoing  repairs.  She  could 
not  move  of  her  own  volition  nor  could  she  be  moved  at  the 
time  in  furtherance  of  commerce.  She  was  neither  pursuing 
nor  capable  of  engaging  in  her  ordinary  business  of  naviga- 
tion of  the  seas." 

Again,  in  considering  the  averments  of  the  libel  concern- 
ing the  origin  of  the  fire  which,  it  was  alleged,  enveloped 
the  Jefferson,  and  which,  it  was  asserted,  had  been  extin- 
guished by  the  exertions  of  the  alleged  salvors,  the  court 
observed,  p.  360: 

"This  language  makes  it  clear  that  the  peril  in  which  the 
Jefferson  was  placed  arose  from  a  fire  on  the  shore,  and  that 
there  was  no  peril  in  connection  with  the  sea  or  the  naviga- 
tion thereof." 

In  simiming  up  its  conclusion  the  court  said,  p.  361 : 

"The  mere  fact  that  the  property  upon  which  the  fire  was 
extinguished  was  that  of  a  vessel  will  not  suffice.  There  must 
have  been  a  sea  peril  from  which  it  was  rescued,  and  the  ves- 
sel itself  must  have  been  at  the  time  the  subject  of  a  sea  peril, 
in  order  to  support  a  maritime  lien  and  afford  jurisdiction 
in  rem  in  the  admiralty." 

As  the  foregoing  considerations  demonstrate  that  the  case 
was  dismissed  below  because  of  the  conclusion  that  there  was 
no  jurisdiction  as  a  Federal  court  over  the  subject-matter  of 
the  controversy,  it  results  that  the  motion  to  dismiss  is  with- 
out merit.  Cope  v.  Vailette  Dry  Dock  Co,,  119  U.  S.  625;  The 
Resolute,  168  U.  S.  ^7  \  Cleveland  Terminal  &  Valley  R.  R.  Co. 
V.  Cleveland  Steamship  Co.,  208  U.  S.  316;  DuhUh  &  S.  Bridge 
Co.  V.  The  Troy,  208  U.  S.  321;  Sadly  v.  Bird,  209  U.  S.  481; 
Globe  Newspaper  Co.  v.  WaUca-,  210  U.  S.  356. 


THE  STEAMSHIP  JEFFERSON.  139 

215  U.  8.  Opinion  of  the  Court. 

Passing  to  the  merits,  the  question  is  this :  Did  the  facts  set 
forth  in  the  libel  frima  facie  state  a  claim  for  salvage  within 
the  admiralty  jurisdiction? 

The  contention  on  the  part  of  the  appellee  that  a  nega- 
tive answer  should  be  given  to  this  question  is  based  upon 
the  propositions  which  controlled  the  action  of  the  court 
below.  They  are:  a,  That  at  the  time  the  services  sued  for 
were  rendered  the  Jeflferson  was  in  a  dry  dock  undergoing 
repairs,  was  not  on  the  sea,  but  was  virtually  on  the  shore, 
and  was  consequently  at  such  time  not  an  instrumentality  of 
navigation,  subject  to  the  dangers  and  hazards  of  the  sea; 
6,  The  services  were  not  rendered  in  saving  the  Jefferson  from 
a  maritime  peril,  as  the  danger  relied  on  arose  outside  of  the 
admiralty  jurisdiction  and  not  in  connection  with  the  sea  or 
the  navigation  thereof.  We  shall  consider  the  contentions 
together. 

In  the  nature  of  things  it  is  manifest,  and  indeed  it  is  set- 
tled, that  because  of  the  broad  scope  of  the  admiralty  jurisdic- 
tion in  this  country,  the  perils  out  of  which  a  salvage  service 
may  arise  are  all  of  such  perils  as  may  encompass  a  vessel 
when  upon  waters  which  are  within  the  admiralty  jurisdiction 
of  the  United  States,  from  which  it  follows,  that  the  right 
to  recover  for  salvage  services  is  not  limited  to  services  con- 
cerning a  peril  occurring  on  the  high  seas  or  within  the  ebb 
and  flow  of  the  tide.  And  although  in  defining  salvage  the  ex- 
pression "peril  of  the  sea''  has  sometimes  been  used  as  equiv- 
alent to  peril  on  the  sea,  it  is  settled  that  the  distress  or  danger 
from  which  a  vessel  has  been  saved  need  not,  in  order  to 
justify  a  recovery  of  salvage  compensation,  have  arisen  solely 
by  reason  of  a  peril  of  the  sea  in  the  strict  legal  acceptation 
of  those  words.  The  varied  character  of  services  upon  which 
a  claim  to  salvage  may  be  based  was  pointed  out  in  the  defi- 
nition of  salvage  given  in  the  opinion  in  The  BlackwaU,  10 
Wall.  1,  where  it  was  said  (p.  12) :  *' Salvage  is  the  compensa- 
tion allowed  to  persons  by  whose  assistance  a  ship  or  her 
cargo  has  been  saved,  in  whole  or  in  part,  from  impending 


140  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

peril  on  the  sea,  or  in  recovering  such  property  from  actual 
loss,  as  in  cases  of  shipwreck,  derelict  or  recapture." 

In  The  BlackwaU  the  facts,  in  substance,  were  thesie:  An 
English  ship,  with  cargo  aboard  and  ready  to  sail,  while  lying 
at  anchor  in  the  harbor  of  San  Francisco,  about  seven  or 
eight  hundred  yards  from  the  wharves,  was  discovered  to  be 
on  fire.  A  steam  tug  was  utilized  in  conveying  alongside  of 
the  ship  members  of  the  fire  department  and  two  steam  fire 
engines  belonging  to  the  city.  After  the  fire  had  been  extin- 
guished the  tug  took  the  ship  in  tow  and  safely  placed  her  on 
adjacent  flats,  in  charge  of  her  master  and  crew.  Upholding 
the  right  of  the  owners  of  the  steam  tug  and  her  master  and 
crew  to  salvage  compensation,  the  court  said  (p.  11) : 

"Service,  imdoubtedly,  was  performed  by  the  members  of 
the  fire  department;  but  it  is  a  mistake  to  suppose  that  service 
was  not  also  performed  by  the  steam  tug,  as  it  is  clear  that 
without  the  aid  of  the  steam  tug  and  the  services  of  her 
master  and  crew  the  members  of  the  fire  company  would 
never  have  been  able  to  reach  the  ship  with  their  engines  and 
necessary  apparatus,  or  to  have  subdued  the  flames  antl  ex- 
tinguished the  fire.  Useful  services  of  any  kind  rendered  to 
a  vessel  or  her  cargo,  exposed  to  any  impending  danger  and 
imminent  peril  of  loss  or  damage,  may  entitle  those  who 
render  such  services  to  salvage  reward. 

"Persons  assisting  to  extinguish  a  fire  on  board  a  ship,  or 
assisting  to  tow  a  ship  from  a  dock  where  she  is  in  imminent 
danger  of  catching  fire,  are  as  much  entitled  to  salvage  com- 
pensation as  persons  who  render  assistance  to  prevent  a  ship 
from  being  wrecked,  or  in  securing  a  wreck  or  protecting  the 
cargo  of  a  stranded  vessel."  The  Rosalie ,  1  Spink,  188;  East- 
em  Monarch,  Lush.  81 ;  The  Tees,  Lush.  505;  Williams  &  Bruce 
Adm.  Prac.  92. 

The  case  of  The  Rosalie  was  one  of  salvage  of  a  vessel  in 
danger  from  a  fire  at  sea,  and  among  other  things  treated  as 
constituting  the  salving  services  was  the  unloading  of  the 
cargo  upon  land.    In  The  Teef^,  salvage  was  awarded  for  tow- 


THE  STEAMSHIP  JEFFERSON.  141 

215  XT.  S.  Opinion  of  the  Court. 

ing  to  a  place  of  safety  a  vessel  lying  in  a  dock  and  in  danger 
of  catching  fire  from  the  surrounding  warehouses  which  were 
in  flames.  To  the  English  cases  cited  in  the  opinion  in  The 
BlackwaU  may  be  added  that  of  The  City  of  Newcastle,  7 
Asp.  Mar.  Cas.  (N.  S.)  546.  That  case  was  heard  before  Jus- 
tice Bruce,  assisted  by  the  Trinity  Masters,  and  the  facts  in 
brief  were  as  follows :  A  fire  broke  out  on  board  a  vessel  which 
was  lying  alongside  a  jetty  at  the  entrance  to  a  dock.  The 
vessel  was  under  repairs,  with  no  steam  up,  and  had  no  one 
but  the  master  and  watchman  on  board.  At  the  request  of 
the  master  a  steamship,  which  had  just  arrived,  hove  along- 
side, and  getting  her  hose  on  board  the  burning  vessel,  ex- 
tinguished the  fire,  which,  if  it  had  remained  unchecked, 
would  have  caused  a  very  serious  damage.  The  services  were 
such  as  might  have  been  rendered  by  a  fire  engine  on  shore. 
The  value  of  the  salved  vessel  was  £9,500.  The  defendants 
tendered  £200.  The  court  upheld  the  tender,  being  of  opin- 
ion that  the  services  were  not  of  such  character  as  to  require 
that  the  award  should  be  assessed  upon  the  same  liberal  prin- 
ciples as  obtained  in  the  ordinary  cases  of  sea  salvage  rendered 
by  one  ship  to  another. 

And  the  doctrine  of  The  BhckwaR  and  the  other  cases  just 
reviewed  was  in  substance  reiterated  in  The  Clarita  and  The 
Clara,  23  Wall.  1.  In  that  case  remuneration  was  claimed 
by  the  libellants  as  owners  of  the  steam  tug  Clarita  for  sal- 
vage services  rendered  by  the  tug  and  the  officers  and  crew, 
in  subduing  a  fire  on  board  the  schooner  Clara.  While  at 
anchor  in  the  middle  of  the  Hudson  River  the  Clara  caught 
fire  from  contact  with  a  burning  ferryboat,  which,  after  being 
towed  from  a  ferry  slip,  had  gotten  adrift.  It  was  not  ques- 
tioned that  the  services  intrinsically  considered  were  salvage 
services,  but  because  the  injiuy  to  the  schooner  was  occa- 
sioned by  the  fault  of  the  tug,  whose  owner,  master  and  crew 
asserted  the  salvage  claim,  the  right  to  salvage  was  denied. 
And  the  principles  just  announced,  when  duly  appreciated, 
also  establish  that  the  Jefferson  while  in  dry  dock  undergoing 


144  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.S. 


SCULLY  V.  SQUIER 

ERROR  TO  THE  SUPREME   COURT   OP  THE  STATE  OF  IDAHO. 
No.  21.     Argued  November  5,  1909.--Decided  November  29,  1909. 

Where  plaintiff  bases  his  biU  on  the  contention  that  under  the  town- 
site  law,  §  2387,  Rev.  Stat.,  the  ascertainment  of  boundaries  by 
official  survey  is  a  condition  subsequent  upon  which  the  vesting  of 
the  equitable  rights  of  the  occupant  depends,  the  construction  of  a 
law  of  the  United  States  is  involved,  and,  if  passed  on  adversely  by 
the  state  court,  this  court  has  jurisdiction  imder  §  709,  Rev.  Stat., 

.  to  review  the  judgment. 

The  object  of  local  legislation  authorized  by  the  townsite  law,  §  2387, 
Rev.  Stat.,  is  to  consummate  the  grant  of  the  Grovemment  to  the 
townsite  occupants — not  to  alter  or  diminish  it — and  in  this  cAse  the 
construction  by  the  state  court  of  the  territorial  statute  followed  to 
the  effect  that  the  trustee  and  surveyor  had  no  power  to  alter  or  di- 
minish the  holdings  of  bona  fide  occupants  by  laying  out  or  widening 
streets. 

13  Idaho,  428,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  H,  Winship  Wheatley,  with  whom  Mr.  Ben  F.  Tweedy 
was  on  the  brief,  for  plaintiff  in  error : 

As  to  the  jurisdiction:  The  legal  title  after  entry  and  until 
patent  to  the  mayor-trustee  was  in  the  United  States,  Hussey 
V.  Smith,  99  U.  S.  20;  Ashby  v.  HaU,  119  U.  S.  526;  Cofield  v. 
McClelland,  16  Wall.  331;  Stringfellow  v.  Cain,  109  U.  S.  610, 
and  one  having  an  equitable  title  had  an  absolute  right  to 
have  his  title  confirmed  by  the  trustee  under  §  2387,  Rev. 
Stat.,  the  townsite  law.  Hussman  v.  Durham,  165  U.  S.  144; 
Chever  v.  Homer,  142  U.  S.  122;  McDonough  v.  MiUandon,  3 
How.  693. 

When  the  question  decided  by  the  state  court  is  not  merely 
of  weight  or  sufficiency  of  evidence  but  of  its  competency  and 
effect  as  bearing  on  question  of  Federal  law  jurisdiction  to  re- 


SCULLY  V.  SQUIER.  ^  145 

215  n.  S.  Argument  for  Plaintiff  in  Error. 

view  exists.  Dower  v.  Richards,  151  U.  S.  658;  Mackey  v. 
Dillon,  4  How.  419;  Almonester  v.  Kenton,  9  How.  1. 

The  mayor-trustee  was  an  officer  of  both  the  Federal  and 
Territorial  governments.  Anderson  v.  Barlets,  3  Pac.  Rep. 
225;  Ming  v.  Foote,  23  Pac.  Rep.  515;  Helena  v.  Albertose,  20 
Pac.  Rep.  817. 

For  other  cases  on  the  jurisdiction  of  this  court  to  review 
decisions  involving  confirmation  of  title. and  authority  of 
United  States  officers,  see  Maguire  v.  Tyler,  1  Black,  196; 
Carondelet  v.  St.  Louis,  1  Black,  179;  Mobile  Transp.  Co.  v. 
Mobile,  187  U.  S.  479;  Canal  Co.  v.  Paper  Co.,  172  U.  S.  58; 
Hussman  v.  Durham,  165  U.  S.  144;  Nor.  Pac.  R.  R.  Co.  v. 
CoOmm,  164  U.  S.  383;  Shively  v.  Bowlby,  152  U.  S.  1 ;  Picker- 
ing  V.  Lomaz,  145  U.  S.  310;  Anderson  v.  Carkins,  135  U.  S. 
483;  NeUson  v.  Lagon,  7  How.  772;  Chouteau  v.  Eckhart,  2 
How.  334;  Pollard  v.  Kibbe,  14  Pet.  353;  Wallace  v.  Parker,  6 
Pet.  680;  Ross  v.  Barland,  1  Pet.  655;  Water  Power  Co.  v.  Green 
Bay  Canal  Co.,  178  U.  S.  254;  11  Cyc.  936;  Stanley  v.  Schwalby, 
162  U.  S.  255. 

Under  §  2387,  Rev.  Stat.,  the  entry  initiates  the  grant  col- 
lectively and  the  grant  to  the  individual  cannot  take  effect 
until  the  extent  of  his  occupancy  has  been  defined.  Newhouse 
V.  Semini,  3  Washington,  648,  652;  Ashby  v.  Hall,  119  U.  S. 
526.  The  grant  was  not  confirmed  until  the  official  survey  was 
subsequently  filed,  and  the  survey  after  confirmation  cannot 
be  impeached,  and  power  exists  to  have  the  grant  correctly 
surveyed  before  individual  rights  attach.  Moore  v.  Walla 
Walla,  2  Pac.  Rep.  187;  Boise  City  v.  Flanagan,  53  Pac.  Rep. 
453;  Laughlin  v.  Denver,  50  Pac.  Rep.  917;  GaU  v.  Galloway, 
4  Pet.  332;  Haydd  v.  Dufresne,  17  How.  23;  Greer  v.  Mezes,  24 
How.  268;  Cragin  v.  PfnoeU,  128  U.  S.  691. 

The  mayor-trustee  had  no  power  to  deed  any  person  a  part 
of  a  surveyed  street.  Amador  County  v.  Gilbert,  65  Pac.  Rep. 
130;  Pachen  v.  Ashby,  1  Pac.  Rep.  130;  §  3,  Idaho  Territorial 
Act;  Stale  v.  Wd>ster,  72  Pac.  Rep.  295. 

The  deeds  and  the  official  survey  are  conclusively  binding 
VOL.  ccxv — 10 


br  ^nrnif  ji  Sjesiel  215  U.  S. 


*,rj^  -T^Kcrac:^  zi  ffr:r.  »zji  *n?y  esc  ^kyv  mi  eqm- 
tori^t:  rljCX:^  ci  j£d  Vi  the  auni  *'?kr^e*i  bj  then  and  have 
ufA  \t^.  k)g^  v:>  iO  acj  cc  h.  Tb?  Lizi.i  -r^ki^vd  by  them 
(iriTirA  a  pan  of  the  Coc^rpsBccnl  ^rmnt  :o  the  aggnPEprinn,  to 
the  ettj  <^  Lftwi-tctu  pr>sieg&i':c  oc  5u»:i  l»zid  has  been,  at  aQ 
iirr^ji  •ir>^  the  aerep^ance  of  deeds  uj:«jq  :he  official  survey  of 
D  irtn^,  if  an j  por-'irA-ion  dates  bac^  to  this  period,  wrongful 
arid  unlawftil  and  the  maintenance  of  a  pmale  and  pabGe 
niiii^aDic^,  gi^'ing  no  poe^essor  theref^  any  rights  in  law  or  in 
e^jujty  an  agaiaot  the  city  cm*  as  against  the  plaintiff  in  error. 
{l^ii¥%  fnxpra;  WoodruU  v.  Mining  Co^  9  Sawy.  513,  517;  5.  C, 
18  ¥f:il  Rep,  753 ;  3/iH*  v.  HalL  9  Weni  315;  McLean  v.  /nm 
JFr^Jbi,  83  Pac.  Rep.  1083;  ITof/e  v.  SuUiran,  32  N.  E.  Rep. 
1018;  flaU  v.  BreyfrjgU,  70  N.  E.  Rep.  883;  Blin  v.  Blankenskip, 
77  .S.  W,  R/;p,  919;  ViUage  of  Lee  \.  Harris,  69  N.  E.  Rep.  230; 
Atlantic  City  v.  Snee,  52  Atl.  Rep.  372;  LewisUm  v.  BootA,  34 
Vai%  R^5p,  809;  fTeftfr  v.  Birmingham,  9  So.  Rep.  161;  OdUoiid 
V,  Oakland  Co.,  50  Pac.  Rep.  277;  Orena  v.  Santa  Barbara,  28 
Parj,  Rep.  268;  MHU  v.  Lo^  Angeles,  27  Pac.  Rep.  354;  Visala 
v.  JacdbSf  4  Pac.  Rep.  433;  People  v.  Pope,  53  California,  437; 
Sullivan  v.  Tichner,  53  N.  E.  Rep.  759;  Cheek  v.  Aurora,  92 
Indiana,  107;  Lee  v.  il/wnd  Station,  8  N.  E.  Rep.  759;  Waterloo 
V.  f/nion  Mitt«  Co.,  34  N.  W.  Rep.  197;  Louisiana  &c.  Co.  v. 
Nm)  Orleans,  9  So.  Rep.  21 ;  Sheen  v.  Stothart,  29  La.  Ann.  630; 
^ifw;  Orleans  v.  Magoon,  4  Mart.  (La.)  2;  Thibodeaux  v.  Mo^ 
f/To/«,  4  La.  Ann.  73 ;  Witherspoon  v.  Meridian,  13  So.  Rep.  843; 
VirkHhurg  v.  Marshall ,  59  Mississippi,  563;  Territory  v.  Deegan, 
W  Montana,  82;  Hoboken  Land  Co.  v.  Hoboken,  36  N.  J.  L.  540; 
.SVa/fl  V.  Trenton,  30  N.  J.  L.  198;  Jersey  C%  v.  State,  30  N.  J. 
I^  521 ;  Tainter  v.  Morrison,  18  N.  J.  L.  46;  Cross  v.  Morrison, 
\H  N.  J.  L.  306;  Jersej/  CUy  v.  Morm  CanoZ  Co.,  12  N.  J.  Eq. 
.VI 7;  Orpfian  Aaylum  v.  Troy,  32  Am.  Rep.  286;  Morrison  v. 
Nrw  York  Co.,  74  Hun  (N.  Y.),  398;  Milhau  v.  Sharp,  27  N.  Y. 
611:  Mills  V.  /fo/Z,  9  Wend.  (N.  Y.),  315;  Commonwealth  v. 
MiH^rhiSul,  12  Atl  Rep.  424;  Kopf  v.  r^/ter,  101  Pa.  St.  27; 
Kittaning  At't^dttny  \\  Broivn,  41  Pa,  St,  269;  Baxter  v.  Com- 


SCULLY  V.  SQUIER.  147 

215X7.8.  Argument  for  Defendant  in  Error. 

monweaUhj  3  Penn.  &  W.  253;  ComnumweaUh  v.  McDonald,  16 
Sei^.  &  R.  (Pa.)  390;  Philadelphia  v.  Crump,  1  Brewst.  (Pa.) 
320;  Philadelphia  v.  Friday,  6  PhUadelphia,  276;  Chafe  v. 
Aiken,  35  S.  E.  Rep.  800;  Sims  v.  Chattanooga,  2  Lea  (Tenn.), 
694;  Memphis  v.  Lenore  R.  Co,,  6  Coldw.  (Tenn.)  412;  Raht  v. 
Smthem  R.  Co.,  50  S.  W.  Rep.  72;  Pates  v.  TTarrcn/on,  84 
Virginia,  337;  Taylor  v.  ComnumweaUh,  29  Gratt.  (Va.)  780; 
Ralston  v.  T7es^  33  S.  E.  Rep.  326;  Teas  v.  St.  Albans,  17  S. 
E.  Rep.  400;  Childs  v.  iVefeon,  33  N.  W.  Rep.  587;  Simplot  v. 
Chicago  R.  Co.,  5  McCreary,  158;  Grogan  v.  Hayward,  6  Sawy. 
498;  Miller  y.  Indianapolis,  101  Indiana,  200. 

The  enclosure  and  possession  of  a  platted  street  which 
has  been  dedicated  are  immaterial,  however  long  continued. 
Cases  supra;  Hall  v.  BreyfogU,  70  N.  E.  Rep.  883;  Wolfe  v. 
Sullivan,  32  N.  E.  Rep.  1018;  Village  v.  Harris,  69  N.  E.  Rep. 
230. 

The  possession  relied  upon  by  the  defendants  in  error  has 
at  all  times  been  wrongful  and  unlawful  and  they  encroach 
upon  the  legal  and  lawful  street  with  an  occupation  which  de- 
prives the  plaintiff  in  error  of  his  rights  under  the  laws  of  Con- 
gress and  he  should  have  a  mandatory  injunction  against 
them;  for  the  appurtenant  rights  of  the  plaintiff  in  error  are 
not  confined  to  the  front  of  his  lot,  but  extend  to  that  part  of 
the  street  in  front  of  adjoining  lots.  Dooly  Block  v.  Salt  Lake 
Co.,  33  Pac.  Rep.  229;  First  National  Bank  v.  Tyson,  32  So. 
Rep.  144;  Lakr  v.  Metropolitan  Co.,  104  N.  Y.  268;  Beaver  v. 
Baltimore  &c.  Co.,  58  Atl.  Rep.  21;  Dill  v.  Board,  10  L.  R.  A. 
281;  Healy  v.  Kelly,  54  Atl.  Rep.  588;  McLean  v.  Llewellyn 
Iron  Works,  83  Pac.  Rep.  1083;  Tilly  v.  Mitchell  &  Lewis  Co., 
98  N.  W.  Rep.  969;  HoU  v.  BreyfogU,  70  N.  E.  Rep.  883;  Wolfe 
V.  Sullivan,  32  N.  E.  Rep.  1018;  Atlardic  City  v.  Snee,  52  Atl. 
Rep.  372;  Bohne  v.  Blankenship,  77  S.  W.  Rep.  919. 

Mr.  James  H.  Forney  and  Mr.  Isham  H.  Smith  for  defendant 
in  error  submitted : 
The  writ  of  error  should  be  dismissed.    There  is  no  Federal 


148  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

question.  The  only  question  is  one  of  boundary.  TeUuride 
Co.  V.  Rio  Grande  Ry.  Co.,  175  U.  S.  639;  Mardand  v.  Page,  20 
How.  523;  Lanfear  v.  Hurdey,  4  Wall.  204;  McDonough  v. 
Milandon,  3  How.  693;  Almonester  v.  KenUmy  9  How.  1; 
Farmers'  Heirs  v.  Eslava,  9  How.  420;  Fanners'  Heirs  v.  Mo- 
bile, 9  How.  451. 

The  judgment  is  sustained  on  grounds  other  than  Federal. 
Chapman  Land  Co.  v.  Bigelow,  206  U.  S.  41 ;  Rutland  R,  R.  Co. 
V.  Central  Vermont  R.  R.  Co.,  159  U.  S.  630. 

The  nature  of  the  grant  under  the  Federal  townsite  laws,  is 
that  of  confirmation  of  rights  in  existence.  No  new  grant  is 
made — simply  the  ascertainment  of  rights  already  in  existence, 
and  their  certification.  This  is  analogous  to  the  deed  of  con- 
firmation described  by  Blackstone.  ScvUy  v.  Fix,  13  Idaho, 
471 ;  Goldberg  v.  Kidd,  68  N.  W.  Rep.  574;  Pueblo  v.  Budd,  36 
Pac.  Rep.  599;  Cofield  v.  McCleUand,  16  Wall.  334;  String- 
fellow  V.  Cain,  99  U.  S.  610;  Tovm  Co.  v.  Maris,  11  Kansas, 
128-151;  Rathbone  v.  Sterling,  25  Kansas,  444;  Helena  v. 
Albertose,  20  Pac.  Rep.  817;  McCloskey  v.  Pac.  Coast  Co.,  160 
Fed.  Rep.  194. 

The  mayor-trustee  and  the  surveyor  were  not  "granting" 
lands  to  these  occupants.  Their  rights  and  duties  were  pre- 
scribed by  the  law  itself,  and  neither  could  by  exceeding  the 
power  given  him,  divest  property  rights  nor  defeat  vested 
rights.  United  States  v.  Thurber,  28  Fed.  Rep.  56;  Parcher  v. 
Ashby,  1  Pac.  Rep.  204;  Ashby  v.  Hall,  119  U.  S.  526;  Bing- 
ham V.  Walla  Walla,  13  Pac.  Rep.  408;  Goldberg  v.  Kidd,  48 
N.  W.  Rep.  574;  Cofield  v.  McClelland,  16  WaU.  334;  Treadway 
v.  Wilder,  8  Nevada,  91 ;  Alimany  v.  Petduma,  38  California, 
553;  Aspen  v.  Rucker,  10  Colorado,  184;  Town  Co.  v.  Maris,  11 
Kansas,  128;  Rathbone  v.  Sterling,  25  Kansas,  444. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

The  relation  of  the  parties  to  the  cause  of  action  is  the  same 
in  this  court  as  in  the  state  courts,  and  we  will  refer  to  plaintiflf 


SCULLY  V.  SQUIER.  149 

315  U.  S.  Opinion  of  the  Court. 

in  error  as  plaintiff  and  to  the  defendants  in  error  as  defend- 
ants. 

The  pleadings  in  the  case  are  exceedingly  voluminous  and 
equally  so  are  the  findings  of  fact.  It  is  enough  for  our  purpose 
to  say  that  the  city  of  Lewiston,  State  of  Idaho,  was  entered 
as  a  townsite  under  §  2387  of  the  Revised  Statutes,  herein- 
after quoted,  and  a  patent  was  issued  by  the  United  States  to 
the  mayor  of  the  city  in  trust  for  the  occupants  of  the  lands 
conveyed.  In  pxuBuance  of  the  trust  the  mayor  executed 
conveyances  to  the  predecessors  in  title  of  plaintiff  and  de- 
fendants. The  rights  derived  through  these  deeds,  and  the 
occupation  of  the  land  preceding  and  subsequent  to  them,  and 
the  effect  of  a  survey  made  by  one  E.  P.  True,  hereinafter  re- 
ferred to,  and  the  plat  thereof  filed  by  him,  constitute  the 
questions  in  the  case.  Plaintiff  seeks  by  this  suit  to  enjoin  de- 
fendants from  encroaching  on  D  street,  as  laid  down  on  said 
plat,  by  certain  buildings  which,  it  is  alleged,  they  proposed 
to  erect.  It  is  prayed,  besides,  that  the  buildings,  if  erected 
before  an  injunction  can  be  obtained,  be  declared  a  public 
nuisance,  ''damaging  the  public  and  this  plaintiff's  private 
rights,"  and  be  abated.  The  special  damage  alleged  is  that 
plaintiff,  having  erected  a  building,  on  what  he  alleges  to  be 
the  true  boundary  line  of  D  street,  will  be,  as  it  was  said  in  the 
argument,  "put  into  a  hole"  by  the  buildings  of  defendant 
projecting  beyond  it,  and  that  light  and  air  thereto,  through 
the  doors  and  windows  of  plaintiff's  building,  will  be  .pre- 
vented, and  the  view  therefrom  to  all  parts  of  D  street  ob- 
structed, and  that  "the  light  and  air  and  view  from  all  parts 
of  the  said  D  street  as  the  said  building  [plaintiff's  building] 
is  constructed,  necessarily  ensue  and  benefit  the  said  property 
materially,  and  are  of  great  value  to  the  plaintiff,  and  as  is 
also  the  right  of  egress  and  ingress." 

It  is  further  alleged  that  before  erecting  his  building  plain- 
tiff applied  to  the  city  engineer  to  be  shown  the  original  south 
line  of  D  street  according  to  the  original  survey,  and  the 
engineer  ran  "the  lines  on  the  ground  according  to  the  said 


160  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

original  survey  and  plat,"  and  that  plaintiff  erected  his  build- 
ing in  accordance  therewith,  "  covering  the  entire  lot." 

It  is  also  alleged  that  the  lots  owned  by  defendants  were 
conveyed  by  the  mayor  to  the  original  owners  according  to  the 
original  survey,  and  "  deeds  thereto  accepted  according  to  the 
said  original  survey  and  plat,  and  said  lots  have  since  been 
conveyed  to  the  defendants  and  their  grantors  according  to 
the  said  original  survey  and  plat."  A  dedication  of  the  street 
to  the  public  is  averred  as  hence  resulting,  and  an  estoppel 
against  defendants  to  dispute  the  survey  and  plat.  The  an- 
swer of  the  defendants,  in  effect,  denies  the  correctness  of  the 
survey  and  plat  made  by  True,  and  avers  that  there  was  an 
amendment  of  the  latter  which  exhibited  the  streets  and  alleys 
according  to  the  occupation  of  the  respective  claimants  of  the 
lots.  It  is  admitted,  however,  that  some  of  the  deeds  issued 
were  in  accordance  with  the  plat,  but  it  is  denied  that  all  the 
deeds  were,  and  averred  "that  the  same  were  in  accordance 
with  the  use  and  occupation  of  the  lands  prior  to  the  survey, 
and  with  the  said  survey  and  plat,  as  the  same  were  and  had 
been  amended." 

The  findings  of  the  trial  court  sustained  these  averments, 
and  found  further  that  the  True  survey  as  originally  made 
disregarded  the  Unes  of  occupation  of  the  lots,  and  "ran 
through  buildings  then  in  the  actual  use  and  occupancy  of 
the  claimants  of  land  and  cut  off  approximately  four  feet  from 
the  north  end  of  buildings  there  standing  and  in  actual  use  and 
occupation  of  bona  fide  claimants." 

A  decree  was  passed  dismissing  the  suit,  which  was  aflirmed 
by  the  Supreme  Court.    13  Idaho,  417. 

All  of  the  parties,  as  we  have  said,  denved  their  rights  and 
titles  under  §  2387  of  the  Revised  Statutes,  providing  for  the 
reservation  and  sale  of  townsites  on  the  pubUc  lands.  That 
section  is  as  foUows: 

"  (Entry  of  town  authorities  in  trust  for  occupants.)  When- 
ever any  portion  of  the  public  lands  have  been  or  may  be 
settled  upon  and  occupied  as  a  townsite,  not  subject  to  entry 


SCULLY  V,  SQUIER.  151 

215  n.  S.  Opinion  of  the  Court. 

under  the  agricultural  preemption  laws^  it  is  lawful^  in  case 
such  town  be  incorporated,  for  the  corporate  authorities 
thereof,  and,  if  not  incorporated,  for  the  judge  of  the  county 
court  for  the  county  in  which  such  town  is  situated,  to  enter 
at  the  proper  land  office,  and  at  the  minimum  price,  the  land 
so  settled  and  occupied  in  trust  for  the  several  use  and  benefit 
of  the  occupants  thereof,  according  to  their  respective  in- 
terests; the  execution  of  which  trust,  as  to  the  disposal  of  the 
lots  in  such  town,  and  the  proceeds  of  the  sales  thereof,  to  be 
conducted  under  such  regulations  as  may  be  prescribed  by 
the  legislative  authority  of  the  State  or  Territory  in  which 
the  same  may  be  situated." 

We  have  not  recited,  nor  do  we  think  that  it  is  necessary  to 
recite,  all  of  the  facts  found  by  the  lower  courts.  We  may  add 
to  those  which  we  have  stated  that  the  city  of  Lewiston  was 
incorporated  under  the  laws  of  the  Territory  of  Washington, 
it  then  being  within  that  Territory,  and  was  reincorporated 
by  an  act  of  the  legislature  of  Idaho  in  1866,  it  then  being 
within  Idaho.  The  act  defined  the  boundaries  of  the  city. 
Levi  Ankeny  was  mayor  of  the  city  in  1871,  and  on  Novem- 
ber 21  of  that  year  he  filed  his  declaratory  statement  No.  39 
in  the  United  States  land  office  at  Lewiston,  proposing  to  enter 
the  lands  included  within  the  borders  of  the  city  as  incorpo- 
rated, in  trust  for  its  inhabitants,  claiming  settlement  in  1861. 
Cash  entry  was  made  for  the  lands  June  6, 1874,  by  Henry  W. 
Stainton,  mayor,  in  trust  for  the  inhabitants.  "  The  legislature 
of  the  Territory,  [we  quote  from  the  opinion  of  the  Supreme 
Court  of  the  State,  13  Idaho,  p.  428]  by  an  act  approved  Janu- 
ary 8, 1873  (7th  Sess.  Laws,  p.  16),  provided  for  the  survey, 
platting  and  disposal  of  the  land  in  the  city  of  Lewiston  pur- 
suant to  the  United  States  statutes  in  regard  to  such  matters. 
Said  act  provides  that  the  mayor-trustee  shall  cause  to  be 
made  and  filed  in  his  office  by  a  competent  person  a  plat  of  the 
land  within  said  city,  divided  into  blocks  and  lots,  and  'to 
make  and  deliver  to  the  bona  fide  occupants  of  such  portions 
of  said  lands  described  in  said  patent  from  the  Government  of 


152  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.S. 

the  United  States  who  may  be  entitled  thereto,  good  and  suf- 
ficient deeds  of  conveyance  in  fee  simple  according  to  their 
respective  rights.' 

"Under  the  provisions  of  said  laws  one  E.  B.  True  was  em- 
ployed to  survey  and  plat  the  lands  in  said  town,  and  was 
commanded  to  adjust  said  plat  so  as  to  conform  to  the  con- 
ditions of  the  improvements  and  the  use  and  occupation  of 
such  lands  by  the  settler,  and  the  mayor  was  required  to  make 
and  deliver  to  the  bona  fide  occupants  of  such  lands  good  and 
sufficient  deeds  of  conveyance  in  fee  simple,  according  to  their 
respective  interests,  under  the  provisions  of  said  law. 

"It  appears  from  the  evidence  in  the  case  that  said  True 
made  a  plat  of  said  town,  including  block  24,  in  which  block 
are  the  lots  involved  in  this  case,  so  as  to  make  the  lots  about 
forty-six  feet  long,  north  and  south,  when,  as  a  matter  of  fact, 
most,  if  not  all  of  the  lots  in  that  block  were  fifty  feet  long, 
north  and  south,  as  indicated  by  the  buildings  and  other  im- 
provements thereon.'' 

The  Supreme  Court  said,  13  Idaho,  p.  429 : 

"The  question  is  fairly  presented  as  to  whether  said  True 
had  any  authority  whatever  to  make  said  plat  so  as  to  inter- 
fere with  and  cut  off  a  part  of  the  buildings  and  improvements 
of  the  occupants  of  such  lots.  In  other  words  whether  under 
the  law  a  surveyor,  who  is  employed  to  plat  such  a  townsite 
after  its  entry  by  the  proper  officer,  can  widen  a  street,  and  in 
doing  so  cut  off  a  portion  of  the  buildings  and  improvements 
of  the  lot  owners  bordering  on  such  street." 

The  question  was  answered  in  the  negative,  and  the  judg- 
ment of  the  trial  court,  which  was  adverse  to  plaintiff,  was 
affirmed.  In  some  aspects  the  answer  may  be  said  to  have 
been  put  upon  the  statute  of  the  State  of  January  8,  1873, 
providing  for  the  survey,  platting  and  disposal  of  the  land. 
The  court  observed  that  there  was  no  dispute  that  the  evidence 
established  that  the  defendants  claimed  and  occupied  their 
lots  to  the  extent  they  had  claimed  for  many  years  prior  and 
subsequently  to  the  survey,  end  that  it  was  not  shown  or 


SCULLY  V.  SQUIER.  163 

215  U.  S.  Opinion  of  the  Court. 

claiined  that  part  of  the  lots  was  used  as  a  street,  nor  that  the 
city  ever  claimed  any  part  of  them  as  a  street.  And  it  was 
said  (p.  433) :  "The  city  surveyor  cannot  make  any  portion  of 
said  lots  a  street  by  simply  making  a  plat  and  indicating  on 
such  plat  that  said  lots  were  only  forty-five  or  forty-six  feet 
in  length/'  The  claim  by  defendants  was  of  fifty  feet.  The 
court  further  said  (p.  433):  "The  mayor-trustee,  had  no  ju- 
dicial power  in  this  matter — neither  had  the  surveyor.  The 
surveyor  and  mayor  cannot  dedicate  to  the  public  as  a  street  • 
parts  of  lots  occupied  and  possessed  by  individuals."  This,  it 
may  be  contended,  is  a  mere  construction  of  the  statute  of  the 
State  of  Idaho,  and  nothing  more,  in  other  words,  a  decision 
that  under  the  statute  there  was  no  power  given  to  make  a 
survey  or  plat  which  did  not  conform  to  the  lines  of  occu- 
pation. The  contention  of  plaintiffs,  however,  is  that  "the 
laws  of  Congress  authorize  an  official  ascertainment"  of  the 
boundaries  of  the  city,  and  "that  the  equitable  right  under 
the  said  laws  of  Congress  vests  upon  a  condition  subsequent, 
which  is  that  the  owner  of  the  equity  must  within  a  reasonable 
time  have  his  right  confirmed  by  the  trustee  upon  an  official 
survey  ascertaining  and  settling  its  boundaries  and  nature, 
and  that  the  laws  of  Congress  require  each  townsite  occupant 
to  see  to  it  that  the  official  ascertainment  is  true  and  correct 
and  satisfactory  before  accepting  confirmation  of  his  equitable 
rights  from  the  mayor,  trustee."  It  is  hence  insisted  that  a 
construction  of  the  laws  of  Congress  is  involved.  This  con- 
tention, we  think,  is  the  basis  of  plaintiff's  bill  of  complaint, 
and  it  seems  also  to  have  been  passed  on  by  the  Supreme 
Court  of  the  State.  The  court  said  (p.  433) :  "The  appellant 
[plaintiff  in  error  here]  rests  his  case  here  on  the  making  and 
approval  of  said  plat,"  (that  is,  the  plat  made  by  True,)  and 
the  contention  was  discussed.  We  think,  therefore,  the  motion 
to  dismiss  should  be  overruled. 

But  a  little  more  discussion  is  necessary  to  pass  on  its  merits. 
Section  2387  constitutes  the  grant  of  title,  and  it  is  very  ex- 
plicit as  to  grantees,  to  the  matter  granted,  and  for  whose  use 


154  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

it  is  granted.    The  grant  is  of  lands  occupied  as  a  townsite,  the 
grantees  are  the  corporate  authorities  thereof,  or  the  judge  of 
the  county  court  where  the  town  is  situated,  "  in  trust  for  the 
several  use  and  benefit  of  the  occupants  thereof,  according  to 
their  respective  interests."    And  the  legislation  of  Idaho,  en- 
acted in  pursuance  of  §  2387,  provides,  as  we  have  seen,  that 
the  mayor  shall  cause  to  be  made  and  filed  in  his  office  a  plat 
of  the  land  divided  into  lots  and  blocks,  but  it  is  also  provided 
that  he  is  required,  as  trustee,  "to  make  and  deliver  to  the 
bona  fide  occupants  of  such  portions  of  said  lands  described  in 
said  patent  from  the  Government  of  the  United  States,  who 
may  be  entitled  thereto,  good  and  sufficient  deeds  of  convey- 
ance in  fee  simple,  according  to  their  respective  rights."    The 
object  of  the  state  legislation,  therefore,  was  to  consummate 
the  grant  of  the  Government  to  the  occupants  of  the  land, 
not  to  alter  or  diminish  it.   The  grant  was  through  the  mayor 
to  the  occupants  of  the  lands.   The  extent  of  their  occupation 
was  the  extent  of  their  rights;  determined,  therefore,  the  re- 
lation of  their  lots  to  the  streets  and  alleys;  fixed  the  location 
of  the  streets  and  alleys.    Or,  as  it  is  epigrammatically  ex- 
pressed by  the  Supreme  Court  of  the  State,  "  It  must  be  kept 
in  mind  that  Lewiston  existed  prior  to  the  True  survey.    The 
settlers  did  not  acquire  their  right  under  the  plat  nor  by  virtue 
of  it.    The  survey  and  plat  was  made  for  them;  they  were  not 
made  for  the  survey  and  plat."    But  we  need  not  make  a  uni- 
versal application  of  this.    It  is  enough  for  the  present  case 
that  the  Supreme  Coiut  so  construed  the  power  of  the  mayor 
and  the  surveyor  under  the  Idaho  statute.    It  may  well  be 
contended,  however,  that  the  Supreme  Court  expressed  a  prin- 
ciple that  has  broader  application,  expressed  as  well  the  mean- 
ing of  the  act  of  Congress.     In  Ashby  v.  Hall,  119  U.  S.  526, 
this  court  said  (p.  529),  speaking  by  Mr.  Justice  Field,  "That 
the  power  vested  in  the  legislature  of  the  Territory  (Montana) 
in  the  execution  of  the  trust  (under  §  2387),  upon  which  the 
entry  was  made,  was  confined  to  regulations  for  the  disposal  of 
the  lots  and  the  proceeds  of  the  sales.   These  regulations  might 


SCULLY  V,  SQUIER.  155 

215  U.  S.  Opinion  of  the  Court. 

extend  to  provisions  for  the  ascertainment  of  the  nature  and 
extent  of  the  occupancy  of  different  claimants  of  lots,  and  the 
execution  and  delivery  to  those  found  to  be  occupants  in  good 
faith  of  some  oflBcial  recognition  of  title,  in  the  nature  of  a 
conveyance.  But  they  could  not  authorize  any  diminution  of 
the  rights  of  the  occupants  when  the  extent  of  their  occu- 
pancy was  established.  The  entry  was  in  trust  for  them,  and 
nothing  more  was  necessary  than  an  official  recognition  of  the 
extent  of  their  occupancy.  Under  the  authority  conferred  by 
the  townsite  act  the  legislature  could  not  change  or  close  the 
streets,  alleys  and  bloclcs  of  a  town  by  a  new  survey.  What- 
ever power  it  may  have  had  over  them  did  not  come  from  the 
act,  but,  if  it  existed  at  all,  from  the  general  grant  of  legisla- 
tive power  under  the  organic  act  of  the  Territory.''  See  also 
StringfeUow  v.  Cain,  99  U.  S.  610;  Cofidd  v.  McClelland,  16 
Wall.  331 ;  HiLssey  v.  Smith,  99  U.  S.  20.  Many  state  cases  are 
to  the  same  effect,  and  may  be  found  in  the  notes  to  §  2387  in 
the  United  States  Federal  Statutes  Annotated,  vol.  6,  page  344 
et  seq. 

Further  discussion  is  unnecessary.  Plaintiff's  other  con- 
tentions are  either  disposed  of  by  the  facts  found  by  the  state 
courts  or  do  not  present  Federal  questions. 

JudgmerU  affirmed. 


156  OCTOBER  TERM,  1909. 

Argument  for  Runtford  Chemical  Worin.  215  U.  S. 


RUMFORD  CHEMICAL  WORKS  v.  HYGIENIC  CHEMI- 
CAL  COMPANY  OF  NEW  JERSEY. 

CERTIORARI  TO  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE 

THIRD  CIRCUIT. 

HYGIENIC  CHEMICAL  COMPANY  OF  NEW  YORK  v. 

RUMFORD  CHEMICAL  WORKS. 

CERTIORARI  TO  THE  CIRCUIT  COURT  OF  APPEALS  FOR  THE 

SECOND  CIRCUIT. 

No8.  9, 121.    Argued  November  1,  1909.— Decided  November  29, 1909. 

Although  in  subBequent  cases  a  party  may  have  proved  his  facts,  the 
question  when  here  must  be  decided  on  the  evidence  below  in  the 
particular  case. 

Although  one  not  a  party  may  have  contributed  to  the  expenses  of  a 
former  suit  by  reason  of  business  or  indirect  interest,  if  it  is  not 
shown  he  had  any  right  to  participate  in  the  conduct  of  the  case  he  is 
not  bound  as  a  privy. 

Where  the  Circuit  Court  and  Circuit  Court  of  Appeals  of  the  same 
circuit  agree  on  certain  facts  this  court  will  not  reverse  the  finding 
in  a  case  coming  from  that  circuit  notwithstanding  the  same  fact 
may  not  have  been  found  by  the  courts  of  another  circuit. 

154  Fed.  Rep.  65,  affirmed;  157  Fed.  Eep.  436,  reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Philip  Mauro,  with  whom  Mr.  C.A.L.  Ma&sie  was  on 
the  brief,  for  Rumf ord  Chemical  Works : 

A  prima  fade  case  against  both  Hygienic  companies  is 
made  out  by  the  admissions  without  the  aid  of  other  proof 
regardless  of  the  Clotworthy  deposition.  HuUer  v.  Stopper  Co., 
128  Fed.  Rep.  283;  UniM  Shirt  &  Collar  Co.  v.  Beattie,  149 
Fed.  Rep.  736,  742. 

There  was  no  denial  or  explanation  by  either  infringing 
company:  cases  supra  and  Signal  Co.  v.  Electric  Co.,  97  Fed. 
Rep.  810;  aff'd  107  Fed.  Rep.  284;  Hemdin  v.  Dyewood  Co., 


RUMFORD  CHEM.  WKS.  v.  HYGIENIC  CHEM.  CO.  157 
215  U.  S.      Argument  for  the  Hygienic  Chemical  Companies. 

131  Fed.  Rep.  483;  a£F'd  138  Fed.  Rep.  54;  certiorari  denied, 
199  U.  S.  608. 

The  Clotworthy  deposition  should  have  been  received.  A 
court  may  take  judicial  cognizance  of  its  own  records  in  a 
former  litigation,  especially  one  in  which  present  parties  were 
privies.  BviUr  v.  EcAoUj  141  U.  S.  240;  Aspen  Mining  Co,  v. 
BiRings,  150  U.  S.  31,  38;  Cr(Bmer  v.  Washington,  168  U.  S. 
124,  129;  Re  Boardman,  169  U.  S.  39,  44;  Bremahan  v.  Tripp 
Co,,  72  Fed.  Rep.  920;  Cushman  Box  Co.  v.  Goddard,  97  Fed. 
Rep.  664;  Des  Moines  Nav.  Co.  v.  Homestead  Co.,  123  U.  S.  552; 
United  States  v.  Des  Moines  Nav.  Co,,  142  U.  S.  510;  National 
Co.  V.  Dayton  Co.,  95  Fed.  Rep.  991,  996.  Both  the  Hygienic 
companies  were  "parties"  to  the  test  suit.  3  Robinson  on 
Patents,  §  1176;  Bobbins  v.  Chicago,  4  Wall.  657;  Penfield  v. 
Potts,  126  Fed.  Rep.  475,  480;  CromweU  v.  Sac  County,  94 
U.  S.  351. 

Mr.  Edwin  T.  Rice,  with  whom  Mr.  WiUard  Parker  Butler 
was  on  the  brief,  for  the  Hygienic  Chemical  Companies : 

Privity  was  not  shown  between  either  of  the  Hygienic 
companies  and  the  defendant  on  the  test  suit.  Privity  must 
be  aflSrmatively  shown.  Johnson  v.  Powers,  139  U.  S.  156; 
lAtchfield  V.  Goodnow,  123  U.  S.  549;  Thelier  v.  Hershey,  89 
Fed.  Rep.  575;  Felting  Co.  v.  Asbestos  Co.,  4  Fed.  Rep.  816; 
Telephone  Co.  v.  Telephone  Co.,  27  Fed.  Rep.  663;  Miller  v. 
Tobacco  Co.,  7  Fed.  Rep.  91 ;  Eagle  Co.  v.  Bradley  Co.,  50  Fed. 
Rep.  193;  S.  C,  57  Fed.  Rep.  980;  Box  Co.  v.  Paper  Co.,  95 
Fed.  Rep.  991;  Lane  v.  WeUs,  99  Fed.  Rep.  286. 

The  Circuit  Court  of  Appeals  of  the  Second  Court  erred  in 
taking  judicial  notice  of  matters  outside  the  record.  Stanley 
V.  McElrath,  86  California,  449;  Downing  v.  Howlett,  6  Colo. 
App.  291;  Adler  v.  Lang,  26  Mo.  App.  226;  Grace  v.  BaUau,  4 
S.  D.  333;  Re  Manderson,  51  Fed.  Rep.  501;  Streeter  y.Streeter 
43  Illinois,  155;  Taylor  v.  Adams,  115  Illinois,  570;  Loomis 
V.  GrijgHn,  78  Iowa,  482;  Granger  v.  Griffin,  78  Iowa,  759; 
Banks  v.  Bumam,  61  Missouri,  76;  Spurlock  v.  Mo.  Pac.  Ry., 


158  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

76  Missouri,  67;  Danid  v.  BeOany,  91  N.  C.  78;  PeojAe  v.  De 
La  Guerra,  24  California,  73;  Stale  v.  Ed/wards^  19  Missouri, 
674;  Baker  v.  Mygait,  14  Iowa,  131;  Allison  v.  Insurance  Co,, 
104  N.  W.  Rep.  753;  Re  Osborne,  115  Fed.  Rep.  1;  Bank  v. 
Taylor,  86  III.  App.  388;  Ralphs  v.  Hensler,  97  California,  296; 
McCormick  v.  Hemdon,  67  Wisconsin,  648;  -Bwix  v.  Miller ,  54 
Iowa,  551 ;  -Eyster  v.  (?a/,  91  U.  S.  521 ;  Stale  v.  Wilson,  39 
Mo.  App;  114;  WaJter  Co,  v.  Cowles,  31  California,  215;  1 
Wharton  on  Evidence,  §  326. 

The  chemical  company  failed  to  make  out  a  prima  facie  case. 
Bates  V.  Coe,  98  U.  S.  31,  49;  Royer  v.  CAicajfo  Af/gf.  Co.,  20 
Fed.  Rep.  853. 

The  extract  from  the  Clotworthy  deposition  was  inadmissi- 
ble as  against  the  Hygienic  companies.  Street  Railway  Co.  v. 
Gumby,  99  Fed.  Rep.  192;  Chase's  Stephen's  Evidence,  2d  ed., 
Art.  32;  Greenleaf  on  Evidence,  §  163;  Insurance  Co.  v.  Comr 
missioners,  117  Fed.  Rep.  82. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

These  are  two  suits  in  equity  brought  by  the  Rumford 
Chemical  Company  for  the  infringement  of  a  patent  for  baking 
powders;  one.  No.  9,  brought  in  the  Third  Circuit,  New  Jersey, 
against  the  Hygienic  Chemical  Company,  a  corporation  of  that 
State;  the  other,  No.  121,  brought  in  the  Second  Circuit,  New 
York,  against  a  New  York  corporation  of  the  same  name. 
The  two  cases  were  tried  on  substantially  the  same  record  and 
evidence,  with  the  result  that  in  New  Jersey  the  bill  was  dis- 
missed by  the  Circuit  Court  of  Appeals,  154  Fed.  Rep.  65;  83 
C.  C.  A.  177,  but  in  New  York  the  bill  was  sustained.  159  Fed. 
Rep.  436;  86  C.  C.  A.  416.  Writs  of  certiorari  were  granted 
by  this  court. 

The  defendants  rested  on  the  plaintiff's  evidence,  and  the 
question  in  both  suits  was  whether  a  prima  fade  case  had  been 
made  out.  It  did  not  appear  that  the  defendants  made  or 
sold  baking  powders  as  such,  but  the  New  Jersey  Company 
did  make  acid  phosphates  for  baking  powders  and  other  pur- 


RUMFORD  CHEM.  WKS.  v.  HYGIENIC  CHEM.  CO.  159 
215  U.  S.  Opinion  of  the  Court. 

poses,  and  the  New  York  Company  sold  the  great  part  of  its 
products.  The  plaintiff  contended  that  this  acid  phosphate 
had  the  characteristics  described  in  its  patent,  and  was  made 
and  sold  for  use  in  baking  powders,  and  that  the  manufacture 
and  sale  were  an  infringement  of  its  rights.  A  previous  de- 
cision, Rumfard  Chemical  Works  v.  New  York  Baking  Powder 
Co.,  134  Fed.  Rep.  385;  67  C.  C.  A.  367,  establishing  the  patent, 
was  relied  upon  as  a  test  case  by  which  the  defendants  were 
bound,  but,  except  the  final  decree,  entered  after  the  beginning 
of  the  present  suits,  the  record  was  not  put  in.  It  would  seem, 
from  a  late  case,  that  the  plaintiff  was  correct  in  point  of  fact. 
Provident  Chemical  Works  v.  Hygienic  Chemical  Co,,  170  Fed. 
Rep.  523,  but  the  question  here  must  be  discussed,  of  course, 
on  the  evidence  before  the  court  below.  The  question  is  ma- 
terial as  bearing  upon  the  admissibility  of  the  evidence  of  one 
Clotworthy,  since  dead,  given  in  the  suit  against  the  New  York 
Baking  Powder  Company,  upon  which  the  plaintiff  relied. 

Clotworthy  was  the  president  and  general  manager  of  the 
Clotworthy  Chemical  Company  and  was  a  manufacturer  of 
baking  powder.  He  testified  to  the  purchase  from  the  Hy- 
gienic Company  of  New  York  of  a  barrel  of  granular  acid 
phosphate,  shown  to  be  similar  to  that  described  in  the  plain- 
tiff's patent.  A  bill  from  the  New  Jersey  Company  and  a  re- 
ceipt from  the  New  York  Company  also  were  produced  and 
put  in.  The  courts  in  both  circuits  rightly  regarded  this  as  the 
most  important,  if  not  the  only  evidence  to  make  out  the  in- 
fringement alleged.  Therefore  it  was  necessary  that  the  plain- 
tiff should  prove  that  the  defendants  were  privy  to  the  New 
York  Baking  Powder  Company's  case. 

To  prove  privity  Heller,  the  president  of  the  defendant  com- 
panies, was  called  and  asked  as  to  his  testimony  on  the  former 
occasion.  He  admitted  that  he  then  had  testified  that  ''we 
are  manufacturers  of  granulated  acid  phosphate  and  are  selling 
to  the  trade  in  the  same  way  as"  the  former  defendants;  also 
that  he  had  testified  that  "we  have  [undertaken  to  assist  in 
bearing  the  burdens  of  this  defence  and  have  contributed  to 


160  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

the  defence]  financially  and  otherwise.''  By  the  natural  in- 
terpretation of  the  word  in  the  connection  in  which  it  was  used 
*we'  embraced  the  New  Jersey  company,  and  fairly  may  be 
argued  to  have  meant  both.  Heller  swore  that  these  answers 
were  true,  but  with  the  qualification  that  he  did  not  think  that 
the  New  Jersey  corporation  contributed  financially,  and  that 
he  did  not  remember  whether  it  did  otherwise.  All  the  courts 
agree  that  the  privity  of  the  New  Jersey  corporation  was  not 
made  out.  Probably  all,  and  at  least  the  Circuit  Court  of  Ap- 
peals and  the  Circuit  Court  for  the  Third  Circuit,  148  Fed.  Rep. 
862,  agree  that  if  Clotworthy's  testimony  is  excluded  infringe- 
ment is  not  proved.  We  should  not  revise  this  finding  of  both 
courts  on  the  facts,  and  therefore  it  follows  that  the  New 
Jersey  decree  must  be  affirmed.  The  evidence  on  both  sides  is 
discussed  in  148  Fed.  Rep.  862. 

It  appears  that  the  New  York  company  contributed  to  the 
expenses  of  the  former  case.  But  that  fact  alone  is  not  enough 
to  warrant  a  different  result.  The  agreement  disclosed  in  170 
Fed.  Rep.  523,  was  not  before  the  court.  We  may  reject  as 
extravagant  the  suggestion  that  the  contribution  may  have 
been  made  from  charitable  motives,  and  assume  that  it  was 
induced  by  reasons  of  business  and  indirect  interest,  but  it  was 
not  shown  that  as  between  the  present  and  former  defendants 
either  Hygienic  company  had  the  right  to  intermeddle  in  any 
way  in  the  conduct  of  the  case.  The  Hygienic  Companies 
would  have  been  glad  to  see  the  Rumf ord  patent  declared  void 
and  were  willing  to  pay  something  to  that  end.  That  was  all 
and  that  did  not  make  them  privies,  and  therefore  the  Clot- 
worthy  deposition  was  not  admissible  against  them.  LUchr 
fidd  V.  Goodnow,  123  U.  S.  549,  550.  Whether  if  it  had  been 
admitted,  infringement  could  have  been  inferred  from  the 
sale  of  a  barrel  of  granular  acid  phosphate  to  a  manufacturer  of 
baking  powder  need  not  be  considered.  There  was  other  evi- 
dence in  the  case. 

Decree  in  No,  9  affirmed. 
Decree  in  No,  121  reversed. 


STEWARD  v:  AMERICAN  LAVA  CO.  161 

215  U.  S.  Opinion  of  the  Court. 

STEWARD  V,  AMERICAN  LAVA  COMPANY. 

MORITZ  KIRCHBERGER  v,  AMERICAN  LAVA 

COMPANY. 

CERTIORARI   TO  THE   CIRCUIT  COURT   OF  APPEALS  FOR  THE 

SIXTH  CIRCUIT. 

Nob.  27, 28.    Argued  November  10, 11, 1909.— Decided  November  29, 1909. 

A  patent  cannot  be  sustained  when  the  theory  and  method  are  intro- 
duced for  the  first  time  in  unverified  amended  specifications. 

The  patent  for  a  tip  for  acetylene  gas  burners,  and  for  the  process  of 
burning  acetylene  gas,  held  to  be  void  by  the  court  below  and  by  this 
court  because  the  tip  was  not  new,  the  description  too  indefinite, 
the  amended  specifications,  which  were  unverified,  brought  in  new 
matter  and  the  claims  for  processes  so  called  were  only  claims  for 
the  functions  of  the  described  tip. 

155  Fed.  Rep.  731,  and  155  Fed.  Rep.  740,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr,  Charles  Neave,  with  whom  Mr,  F,  P,  Fish  and  Mr.  Wil- 
liam G.  McKrdght  were  on  the  brief,  for  petitioners. 

Mr,  Louis  C.  Raegener  for  respondents. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

These  are  bills  in  equity  brought  by  the  petitioners  to  re- 
strain the  infringement  of  Letters  Patent  No.  589342,  issued 
to  the  assignee  of  Edward  J.  Dolan,  and  dated  August  31, 
1897.  The  patent  was  held  invalid  by  the  Circuit  Court  of  Ap- 
peals for  the  Sixth  Circuit.  American  Lava  Co.  v.  Steward,  155 
Fed.  Rep.  731  and  740;  5.  C,  84  C.  C.  A.  157  and  166.  It  had 
been  sustained  by  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit,  Kirchberger  v.  American  Acetylene  Burner  Co,,  128  Fed. 
Rep.  599;  S.  C,  64  C.  C.  A.  107,  and  a  writ  of  certiorari  was 
granted  by  this  court  to  the  first-mentioned  Circuit  Court  of 
Appeals. 

The  patent,  so  far  as  it  comes  in  question  here,  is  for  a  tip 
for  acetylene  gas  burners  and  for  the  process  of  burning  acety- 
VOL.  ccxv — 11 


162  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

lene  gas  in  the  mode  set  forth.  The  court  below  held  that  the 
tip  was  not  new,  that  the  description  was  too  indefinite,  that 
the  amended  specifications  brought  in  entirely  new  matter  not 
sworn  to,  and  that  the  claims  for  processes  so  called  were  only 
claims  for  the  functions  of  the  tip  described. 

A  few  words  as  to  the  conditions  and  knowledge  at  the  time 
of  the  alleged  invention  will  help  to  make  the  discussion  plain. 
Acetylene  gas  began  to  be  produced  on  a  large  scale  for  com- 
mercial purposes  about  1895.  It  is  very  rich  in  carbon,  and 
therefore  has  great  illuminating  power,  but  for  the  same  reason 
coupled  with  the  relatively  low  heat  at  which  it  dissociates  and 
sets  carbon  free,  it  deposited  soot  or  unconsumed  carbon  and 
soon  clogged  the  burners  then  in  use.  It  was  possible  to  secure 
a  complete  consumption  of  carbon  by  means  of  the  well- 
known  Bunsen  burner.  This  consists  of  a  tube  or  cylinder 
pierced  on  the  sides  with  holes  for  the  admission  of  the  air, 
into  one  end  of  which  a  fine  stream  of  gas  is  projected  through 
a  minute  aperture  and  from  the  other  end  of  which  it  escapes 
and  then  is  burned.  A  high  pressure  is  necessary  for  the  gas 
in  order  to  prevent  its  burning  back.  The  ordinary  use  of  the 
Bimsen  burner  is  to  develop  heat  and  to  that  end  a  complete 
combustion  of  course  is  desired.  But  with  an  immediately 
complete  combustion  there  is  little  light.  The  yellow  light  of 
candles  and  gas  jets  is  due  to  free  particles  of  carbon  at  a  red 
heat,  but  not  yet  combined  with  oxygen,  or,  as  we  commonly 
say,  consumed.  On  the  appearance  of  acetylene  gas  inventors 
at  once  sought  to  apply  the  principle  of  the  Bunsen  burner 
with  such  modifications  as  would  produce  this  result.  In 
doing  so  they  foimd  it  best  to  use  duplex  burners,  that  is, 
burners  the  outlets  of  which  were  inclined  toward  each  other 
so  that  the  meeting  of  the  two  streams  of  gas  formed  a  flat 
flame,  and  to  let  in  less  air. 

In  this  state  of  things  Dolan  filed  his  application  on  Febru- 
ary 18,  1897.  The  object  was  said  to  be  "to  provide  a  burner 
the  use  of  which  will  result  in  perfect  combustion  of  the  gas 
and  the  production  of  a  flame  which  will  afford  the  greatest 


.  STEWARD  V.  AMERICAN  LAVA  CO.  163 

215  U.  8.  Opinion  ot  the  Court. 

poesible  degree  of  light  from  a  given  amount  of  gas  consiuned." 
A  duplex  burner  on  the  Bunsen  plan  was  described,  but  with 
no  indication  of  any  patentable  device.  The  drawings  were 
merely  diagrams,  and,  with  reference  to  what  16  to  follow,  we 
may  mention  that  two  of  them  show  two  sets  of  air  holes, 
one  above  the  other,  and  that  the  specification  even  now  ex- 
pressly allows  '  two  or  more '  seta.  The  claims  were  rejected  on 
April  6,  1897,  and  in  the  same  month  Dolan  changed  his  at- 
torney. On  May  20  a  new  specification  and  new  claims  were 
filed  by  the  new  attorney,  but  not  sworn  to  by  Dolan,  and  on 
these,  with  no  material  change,  the  patent  was  granted.  In 
this  specification,  as  in  the  former,  though  in  different  words, 
it  is  said  that  "  in  order  to  prevent  the  deposit  of  carbon  within 
the  burner  or  at  the  burner  top  and  thereby  insiu^  a  perfect 
combustion  and  a  smokeless  Same  at  the  point  where  the  same 
is  formed,  I  provide  a  series  of  inclined  air  passages,  a,  a,  which 
lead  into  the  enlarged  passage,  E,  above  the  point  at  which 
the  contracted  opening,  C,  is  provided,"  •  The  inclined  air 
*  The  following  are  copies  of  Dolaa's  Fig.  1,  and  Fig.  2. 

•27  JET 


164  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  S. 

passages  are  the  holes  in  the  sides  of  the  Bunsen  burner,  E  is 
the  cylinder,  or  tube,  and  the  contracted  opening,  C,  is  the 
point  at  which  the  gas  enters  the  tube.  This  device,  and 
nothing  else,  is  pointed  out  as  the  means  for  preventing  the 
clogging  of  the  tips.  A  preference  is  stated  for  a  burner  in 
duplex  form. 

In  the  new  specification,  however,  it  was  said  that  the  opera- 
tion 'seems  to  be'  that  the  gas  draws  in  on  all  sides  an  en- 
velope of  air  through  the  openings  o,  &c.,  so  far  stating  the 
Bunsen  principle,  but  adding  that  "the  result  of  this  arrange- 
ment seems  to  be  to  so  cool  the  outside  of  the  flame  as  to  pre- 
vent any  deposit  of  carbon  at  the  point  of  egress."  And  an- 
other paragraph  was  as  follows:  "The  structure  of  my  burner 
is  such  that  if  all  of  the  burner  were  cut  off  in  a  horizontal 
plane  immediately  above  the  outlet  C  [the  point  where  the 
gas  enters  the  upper  chamber]  the  general  shape  and  condition 
of  the  flame  would  not  be  modified,  but  in  this  case  an  im- 
mediate combustion  would  occur  at  the  outlet.  Under  the 
conditions  of  this  burner  the  point  where  the  gas  reaches  its 
kindling  temperature  is  carried  upward,  but  the  general  shape 
of  the  escaping  gas  body  is  not  materially  modified."  It  was 
stated  earlier  that  "the  result  here  accomplished  would  not  be 
accompUshed  in  an  ordinary  air-mixing  burner  in  which  the 
air  was  mingled  generally  with  the  body  of  the  gas,"  and  that 
"in  my  burner  an  absolutely  unobstructed  passage  is  pro- 
vided for  the  escape  of  the  original  jet  of  gas  formed  by  the 
constricted  opening  C.  By  reason  of  this  fact  it  is  substantially 
necessary  to  have  two  jets  if  a  flame  of  considerable  candle 
power  is  desired." 

The  claims  allowed  and  in  controversy  here  are  as  fol- 
lows: 

"1.  The  process  of  burning  acetylene  gas,  which  consists  in 
projecting  a  small  cylinder  of  gas,  in  surrounding  the  same 
with  an  envelop  of  air  insuflScient  to  cause  combustion  of  all 
the  gas,  and  in  finally  supplying  the  gas  with  an  additional 
amount  of  oxygen  by  allowing  the  stream  of  gas  to  expand 


STEWARD  V.  AMERICAN  LAVA  CO.  165 

215  U.  S.  Opinion  of  the  Court. 

above  the  burner-tip  into  contact  with  the  air,  thereby  burn- 
ing the  same,  substantially  as  described. 

"2.  The  process  of  burning  acetylene  gas,  which  consists  in 
projecting  toward  each  other  two  cylinders  of  acetylene  gas, 
in  surrounding  the  same  with  envelops  of  air  insuflBcient  to 
produce  combustion  of  all  the  gas,  and  in  finally  causing  the 
cyUnders  of  gas  to  impinge  upon  each  other  and  produce  a  flat 
flame,  substantially  as  described. 

"3.  The  combination  in  an  acetylene-burner  of  the  block  A 
having  the  minute  opening  C,  the  cylindrical  opening  E,  open- 
ing without  obstruction  to  the  atmosphere,  and  the  air- 
passages  a,  substantially  as  described.'' 

The  ground  upon  which  these  claims  are  maintained  is  the 
theory  indicated  in  one  of  the  passages  that  we  have  quoted, 
to  the  effect  that  the  gas  emerges  to  the  air  surrounded  by  a 
mainly  immixed  flow  of  air  carried  with  it  from  the  cylinder 
containing  the  holes  a,  o,  and  that  this  so  cools  the  outside  of 
the  flame  as  to  prevent  a  deposit  of  carbon.  If  this  theory 
is  not  true  and  if  all  there  is  to  the  Dolan  tip  or  burner  is  to 
provide  for  a  mixture  of  air  with  the  gas  in  the  cylinder  suf- 
ficient to  secure  complete  combustion  of  all  that  is  burned  near 
the  point  of  emergence,  but  insufficient  to  bum  all  the  gas,  the 
patent  must  fail.  For  this  latter  contrivance  was  well  known, 
and  if  the  shortness  of  the  Dolan  tip,  which  we  are  about  to 
mention,  has  no  other  effect  than  to  diminish  the  amoimt  of 
air  received  it  does  nothing  new.  Moreover,  unless  the  theory 
of  the  cooUng  envelop  so  dominates  the  specification  as  to  ex- 
plain what  is  doubtful  and  ambiguous  in  it,  the  claim  would 
not  be  for  what  now  is  said  to  be  the  characteristic  of  the 
Dolan  tip.  The  characteristic  of  the  Dolan  tip  now  is  said  to 
lie  in  the  fact  that  the  cylinder  is  very  short,  as,  it  is  said,  it 
must  be  for  it  to  be  true  that  the  shape  of  the  flame  would  not 
be  modified  by  cutting  it  off.  The  shortness  of  the  cyUnder  is 
supposed  to  prevent  the  mixing  of  the  air  and  to  produce  the 
result  desired. 

But  this  theory  of  cooling  not  only  is  disputed  in  the  testi- 


166  OCTOBER  TERM,  1909. 

OpinicHi  of  the  Court.  215  U.  S. 

mony  and  treated  as  speculative  and  highly  doubtful  by  the 
courts  below,  but  is  discredited  by  the  patent  itself.  The 
foiulh  claim  is  for  a  combination  m  an  acetylene  burner  of  two 
"air-mixing"  burners.  The  theory  was  not  that  upon  which 
Dolan  was  working,  or  in  which  he  even  now  believes.  He  was 
a  witness  in  the  case  and  testified  that  it  was  his  lawyer's  con- 
trivance, and  while  of  course  a  mechanical  device  may  be 
patentable  although  the  true  theory  of  it  is  not  understood, 
here  the  words  relied  upon  to  show  that  the  cylinder  was  to 
have  this  characteristic  shortness  also  were  the  insertion  of  the 
lawyer,  and  would  have  had  little  importance  apart  from  that 
newly  adopted  point  of  view.  We  should  regret  to  be  com- 
pelled to  decide  a  case  by  the  acceptance  or  rejection  of  a 
theoretic  explanation  upon  which  it  stiU  is  possible  that  au- 
thorities in  science  disagree.  But  the  uncertainty  indicated 
even  by  the  language  of  the  patent  is  important  in  determining 
whether  it  describes  a  new  invention  in  terms  suflSciently  pre- 
cise to  be  upheld. 

As  we  have  said,  the  only  passage  indicating,  even  by  in- 
direction, the  length  of  the  cylinder,  if  that  does,  is  the  para- 
graph stating  that  if  the  burner  were  cut  off  the  general  shape 
and  condition  of  the  flame  would  be  the  same,  which  is  thought 
to  reproduce  more  exactly  a  suggestion  in  Dolan's  specification 
as  to  a  funnel  shaped  flame,  said  by  him  to  result  from  the 
issue  of  gas  with  pressure  through  a  small  opening.  But  if  the 
relative  shortness  of  the  cylinder  had  been  imderstood  to  be  an 
essential  thing  the  patent  naturally  would  have  said  so.  It 
is  suggested  that  the  shortness  is  implied  by  the  word  tip  in  the 
patent,  but  the  patent  equally  is  said  to  relate  to  an  improve- 
ment in  burners,  and  the  length  of  burners  depends  on  the 
principle  involved.  In  fact,  all  that  directly  bears  upon  length 
is  the  statement,  which  we  have  not  yet  mentioned,  that  the 
contracted  opening  for  the  gas  into  the  cylinder  is  at  or  near 
the  longitudinal  center  of  the  block  constituting  the  tip.  As 
the  block  may  be  longer  or  shorter,  with  no  limits  fixed,  while 
the  cylinder  extends  from  the  longitudinal  center  to  the  outlet 


STEWARD  V.  AMERICAN  LAVA  CO.  167 

215  U.  8.  Opinion  of  the  Court. 

where  the  gas  is  burned,  obviously  the  length  of  the  cylinder, 
or  one-half  the  block,  may  be  greater  or  less,  so  far  as  we  are 
infonned  by  this  portion  of  the  patent.  And  when  this  is 
taken  with  the  language  as  to  mixing  in  the  fourth  claim; 
with  the  allowance  of  two  or  more  sets  of  air  holes,  one  above 
another;  with  the  imcertain  statement  of  the  theory  (*thc 
operation  seems  to  be,'  'the  result  seems  to  be';)  and  with 
the  statement  of  the  air  holes  alone  as  the  feature  that  pre- 
vents the  deposit,  it  seems  to  us  impossible  to  say  that  suffi- 
cient instructions  are  given  on  the  supposed  vital  point. 
Again,  no  proportions  are  indicated;  the  number,  size  and 
position  of  the  air  holes,  except  that  they  enter  the  cylinder 
above  the  gas,  are  left  at  large,  and  if  the  plaintiffs'  theory  is 
the  true  one,  the  public  are  told  little  more  than  to  try  ex- 
periments until  they  find  a  burner  that  works.  The  plaintiffs 
say  that  a  burner  with  a  distance  of  four-fifths  of  an  inch  or 
over  between  gas  and  discharge  orifice  is  a  Bunsen  burner,  and 
that  for  the  burner  to  be  effective  for  illuminating  purposes 
the  distance  should  be  only  a  few  millimeters.  But  if  experi- 
ment had  proved  the  contrary  we  cannot  doubt  that  they 
equally  would  have  claimed  the  successful  burner  as  the  one 
Dolan  had  contrived. 

If,  as  now  is  said,  a  rat-tail  flame  is  the  mark  of  Dolan's 
burner,  the  words  "funnel  shaped"  in  the  original  application 
were  not  apt  to  describe  it,  and  did  not  purport  to  indicate  a 
test.  They  were  used  merely  to  show  how  the  perfect  com- 
bustion was  achieved  which  is  the  declared  object  throughout. 
The  cause  assigned  was  not  peculiar  to  Dolan's  tip.  The 
amendment,  in  the  passage  as  to  the  unaltered  shape  of  the 
flame  when  the  burner  is  cut  off,  goes  on  to  say  that '  of  course ' 
the  shape,  though  cyUndrical  as  it  issues  from  the  round  hole, 
increases  in  diameter,  'approximating  in  some  degree  to  the 
form  of  an  inverted  cone.'  This  of  itself  almost  excludes  the 
notion  that  the  rat-tail  shape  is  the  test,  and  no  reader  would 
draw  that  or  any  similar  notion  from  the  specification  as  a 
whole. 


168  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  T7.  S. 

We  appreciate  the  difficulties  that  would  beset  an  attempt 
to  make  the  directions  more  precise,  but  it  certainly  was  pos- 
Hible  to  indicate  with  greater  clearness  the  specific  object  to  be 
attained,  and  that  in  any  ordinary  burner  the  tip  must  be 
very  short.  Vacillation  in  theory  led  to  uncertainty  of  phrase. 
If,  however,  we  are  wrong,  then  it  appears  to  us  plain  that 
Dolan's  attorney  introduced  not  merely  the  theory  but  the 
mode  of  applying  it,  for  the  first  time,  in  the  amended  specifi- 
cation, or,  in  other  words,  then  for  the  first  time  pointed  to  an 
invention,  the  essence  of  which  was  to  have  so  short  a  chamber 
or  cylinder  as  to  prevent  the  mixing  of  the  air  taken  into  it 
and  to  emit  the  current  of  gas  surrounded  by  the  greater  part 
of  such  air  as  an  envelope  or  film.  Of  course,  Dolan  desired  to 
produce  the  result  which  the  patented  article  is  said  to  pro- 
duce, but  beyond  that  desire  his  specification  did  not  give  a 
hint  of  the  means  by  which  it  now  is  said  to  be  achieved.  It 
spoke,  it  is  true,  as  we  have  said,  of  producing  a  hollow-shaped 
fuimel  flame  by  reason  of  the  gas  being  forced  through  con- 
tracted openings  at  very  great  pressure.  But  this  did  not  dis- 
close the  invention  and  was  dropped  in  the  amendment.  He 
made  no  claim  for  a  process  and  disclosed  no  invention  of  a 
dovico.  This  being  so,  the  amendment  required  an  oath  that 
Dolan  might  have  found  it  difficult  to  take,  and  for  want  of  it 
the  patent  is  void.  Rev.  Stat,,  §  4892.  Railuxiy  Co.  v.  Sayles, 
97  W  Ss  554.  Eoifleton  Manufacturing  Co.  v.  West,  Bradley  & 
Carty  Manufacturing  Co.,  Ill  U.  S.  490,  Kennedy  v.  HazdUm^ 
12S  l\  S.  iU>7.  De  La  Vergfie  Refrigerating  Machine  Co.  v. 
Frx^ihtrstonc.  147  U.  S.  209,  229. 

The  j>atont  was  held  void  below  on  the  further  ground  that  it 
had  Ixvu  anticijvitoii.  AVe  turn  to  this  last  because  the  ques- 
tii^\  iii  iHMUplioatod  with  the  theory  that  we  have  mentioned. 
If  tho  IV^lan  t>atont  had  unrw^^rwxUy  committed  itself  to  the 
lunivm  i>f  a  ovx>ling  enveKnv  with  a  contrivance  made  very 
s^hv^rt  fv>r  the  purpo^  of  ^vurinc  that  n^?uh,  the  aigument  in 
dofo:v<>(^  \>t  it  would  be  tlv^t  the  K^ditu:  earlier  patents  pn>- 
\\\\l^\i  uiva  tht^  oin\x:>::o  th^vrv*  v^  :v,;\turv  and  admitted*  if 


STEWARD  V,  AMERICAN  LAVA  CO.  169 

215  U.  S.  Opinion  of  the  Court. 

they  did  not  contemplate,  a  longer  tube,  however  similar 
otherwise  they  might  be.  They,  at  least,  exhibit  the  state  of 
the  art  at  the  date  of  the  supposed  invention,  and  show  within 
what  narrow  and  precise  limits  Dolan  had  to  move  if  he  was 
to  produce  an3rthing  new.  So  much  may  be  said  to  be  un- 
disputed, and  we  have  mentioned  some  of  the  facts  that  can- 
not be  denied.  But  on  the  view  that  we  have  taken  of  Dolan^s 
specification,  they  anticipate  all  that  he  can  be  said  to  have 
disclosed  to  the  public.  We  think  it  unnecessary  to  go  over 
much  of  the  disputed  ground  and  shall  mention  but  two  of  the 
patents  put  in  evidence.  The  most  important  of  these  is  one 
issued  in  France  to  Bullier.  This  also  was  for  a  tip  (bee)  for 
acetylene  gas.  This  tip  was  structurally  similar  to  Dolan's, 
admitting  the  gas  through  a  very  small  orifice  and  having  the 
same  slanting  air  passages  entering  the  cylinder  above  and 
around  the  gas,  and,  in  one  drawing  at  least,  entering  it  very 
near  its  upper  end.  Bullier  definitely  adopted  the  theory  of 
mixture  and  stated  the  proportions — iO  per  cent  of  air  to  60 
per  cent  of  gas — and,  after  stating  his  preference  for  a  duplex 
burner,  he  added  that  in  this  manner  the  illuminating  portion 
of  the  flames  is  relatively  far  from  the  orifice  by  reason  of  the 
air  introduced,  and  that  for  the  same  reason  the  combustion  of 
the  carbon  is  complete  between  the  orifice  and  the  point  where 
the  flame  flattens,  the  flame  as  it  issues  from  the  orifices  being 
blue  and  not  illuminating.  In  this  way,  he  said,  he  avoided 
any  deposit  of  carbon.  The  degree  of  mixture  is  affected  by 
the  length  of  the  cylinder  or  tube,  and  when  mixture  is  desired 
naturally  a  longer  tube  would  be  employed  than  when  it  is  to 
be  prevented.  The  drawings,  which  are  admitted  to  be  only 
diagrams,  indicate  a  longer  cylinder  than  Dolan's,  and  al- 
though Bullier  does  not  state  the  length  it  will  be  perceived 
without  more  that  if  the  plaintiffs'  theory  and  construction  of 
their  patent  were  adopted  the  distinction  insisted  upon  by 
them  might  be  held  to  exist.  Otherwise  the  anticipation  is 
complete.  It  is  significant  that  some  of  the  plaintiffs  manu- 
facture under  a  Bullier  license  in  Franco. 


170  OCTOBER  TERM,  1909. 

Syllabus.  216  U.  8. 

The  other  patent  to  be  mentioned  is  another  French  one,  to 
Letang.  He  also  states,  as  means  to  prevent  clogging,  the  re- 
moval of  the  outlet  opening  sufficiently  far  from  the  point  of 
ignition  and  the  cooling  of  the  burner  by  a  current  of  air.  This 
current  was  produced  by  separate  plates  above  the  gas  nozzle 
so  arranged  that  a  certain  quantity  of  air  would  be  carried 
along  by  the  gas.  It  would  seem  from  the  diagram  that  the 
distance  intended  to  exist  between  the  nozzle  and  the  flame 
was  very  short.  We  do  not  dwell  upon  the  earlier  patents  in 
more  detail,  because  we  believe  that  we  have  said  enough  to 
show  that  the  plaintiffs '  cannot  be  sustained. 

Decrees  affirmed. 

Mr.  Justice  McKenna  dissents. 


*•» 


LOUISIANA  ex  rel.  HUBERT,  RECEIVER,  v.  MAYOR 
AND  COUNCIL  OF  THE  CITY  OF  NEW  ORLEANS. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  LOUISIANA. 
No.  11.    Argued  November  1,  2,  1909.— Decided  November  29,  1909. 

This  court  has  not  jurisdiction  to  review  the  judgment  of  a  state  court 
based  on  the  contract  clause  of  the  Constitution  unless  the  alleged 
impairment  was  by  subsequent  legislation  which  has  been  upheld  or 
given  effect  by  the  judgment  sought  to  be  reviewed.  Bacon  v.  Texas, 
163  U.  S.  207. 

A  power  to  tax  to  fulfill  contract  obligations  continues  until  the  obliga- 
tion is  discharged. 

The  power  of  taxation  conferred  by  law  enters  into  the  obligation  of  a 
contract,  and  subsequent  legislation  withdrawing  or  lessening  such 
power  and  which  leaves  the  creditors  without  adequate  means  of 
satisfaction  impairs  the  obligation  of  their  contracts. 

Where  a  municipality  has  power  to  contract  and  tax  to  meet  the  obli- 
gation, the  proper  remedy  of  the  creditor  is  by  mandamus  to  the 
authorities  of  the  municipality  either  to  pay  over  taxes  already  c6l- 
lected  for  their  debt  or  to  levy  and  collect  therefor. 


HUBERT  V.  NEW  ORLEANS.  171 

215  U.  S.  Opinion  of  the  Court. 

The  legifllatvire  of  a  State  cannot  take  away  rights  created  by  fonner 
legislation  for  the  security  of  debts  owing  by  a  municipality  of  the 
State  or  postpone  indefinitely  the  payment  of  lawful  claims  until 
such  time  as  the  municipality  is  ready  to  pay  them. 

Act  of  November  5,  of  1870  of  State  of  Louisiana  providing  for  registra- 
tion and  collection  of  judgments  against  the  city  of  New  Orleans  so 
far  a^  it  delays  the  payment,  or  collection  of  taxes  for  the  payment, 
of  contract  claims  existing  before  the  passage-  of  the  act  is  void  as 
impairing  the  obligation  of  contracts  within  the  meaning  of  the 
Federal  Constitution. 

119  Louisiana  623,  reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  Louqve,  and  Mr.  J.  D.  Rouse,  with  whom  Mr. 
William  Grant  were  on  the  brief,  for  plaintiff  in  error. 

Mr.  Frank  B.  Thomas  for  defendants  in  error. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  presents  the  question  of  the  right  of  the  relator, 
as  receiver  of  the  Board  of  Metropolitan  Police  of  the  Metro- 
politan Police  District,  consisting  of  the  parishes  of  Orleans, 
Jefferson  and  St.  Bernard  and  including  the  city  of  New 
Orleans,  in  the  State  of  Louisiana,  to  compel  an  assessment, 
by  mandamus,  of  taxes  to  pay  a  certain  judgment  recovered 
by  the  relator  in  his  capacity  as  receiver,  against  the  city  of 
New  Orleans,  in  the  sum  of  $123,475.57,  with  interest  from 
April  4,  1904. 

On  September  14,  1868,  the  general  assembly  of  the  State 
of  Louisiana  passed  an  act  establishing  a  Metropolitan  Police 
District,  constituting  the  same  of  the  parishes  of  Orleans,  Jef- 
ferson and  St.  Bernard  (including  the  city  of  New  Orleans). 
Section  29  of  that  act  provides : 

"Sec.  29.  Be  it  further  enacted,  etc..  That  the  common 
comicils  of  the  cities  of  New  Orleans,  Jefferson  City  and 
CarroUton,  and  the  police  juries  of  the  towns  of  Algiers  and 
Gretna,  and  of  the  parishes  of  Orleans,  Jefferson  and  St.  Ber- 


I 


172  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

nard  are  hereby  respectively  empowered  and  directed  annu- 
ally to  order  and  caused  to  be  raised  and  collected  by  the  tax 
upon  the  estates,  real  and  personal,  subject  to  taxation  accord- 
ing to  law,  within  the  said  cities  and  towns,  the  sums  of  money 
as  aforesaid,  annually  estimated  and  apportioned  as  the  share 
of  such  cities  or  parishes  of  the  said  total  expenses  of  the  Met- 
ropolitan Police  District." 

This  act  was  supplemented  by  various  statutes,  and  its 
provisions  were  in  force  until  March  31,  1877,  when  it  and 
various  other  acts  relating  to  the  Metropolitan  Police  Dis- 
trict were  repealed,  and  the  city  of  New  Orleans  was  author- 
ized and  empowered,  through  the  mayor  and  board  of  admin- 
istrators, to  establish,  organize  and  maintain  a  proper  and 
sufficient  police  force. 

On  January  22,  1900,  Louis  A.  Hubert  was  duly  quaUfied 
as  receiver  of  the  Board  of  Metropolitan  Police.  On  April  6, 
1904,  Hubert,  as  such  receiver,  began  an  action  in  the  Civil 
District  Court  of  the  parish  of  Orleans,  in  which  he  averred 
that  the  city  was  indebted  to  him,  as  such  receiver,  in  the 
sum  of  $411,884.89,  with  interest  from  April  3,  1880,  and 
averred  that,  for  various  years,  from  1869  to  1877  inclusive, 
the  city  of  New  Orleans  had  received  and  collected  taxes  for 
the  maintenance  of  the  Board  of  MetropoUtan  Police  and  the 
payment  of  its  expenses,  which  amounts,  although  collected 
by  the  city,  were  never  paid  over  to  the  Board  of  Metro- 
politan Police  or  its  representatives.  The  petition  averred 
that  the  Board  of  MetropoUtan  Police  owed  large  amounts  of 
money;  that  the  whole  of  the  indebtedness  thus  due  from  the 
city  was  necessary  to  pay  the  same.  Upon  issue  made  and 
trial  had  a  judgment  was  rendered  in  favor  of  the  receiver  on 
May  18,  1905.  The  record  of  this  judgment  was  made  part 
of  the  record  herein,  and  it  appears  therein  that  the  Civil 
District  Court  took  an  accoimt  of  the  taxes  collected  for  the 
years  1869  to  1877  inclusive,  and  not  paid  over  for  accoimt 
of  the  Board  of  Metropolitan  Police,  and  found  the  same  to 
be  the  sum  of  $136,082.62,  for  which  judgment  was  rendered 


HUBERT  V.  NEW  ORLEANS.  173 

215  U.  S.  Opinion  of  the  Court. 

against  the  city  of  New  Orleans.  This  judgment  was  modified 
by  the  Supreme  Couii;  of'  Louisiana  on  March  12,  1906,  and 
aflSrmed  after  deducting  the  sum  of  $12,607.05,  leaving  a 
judgment  in  force  for  $123,475.57,  with  interest.  Hubert  v. 
City  of  New  Orleans,  116  Louisiana,  507. 

On  April  23,  1906,  a  petition  for  mandamus  was  filed,  in  the 
present  case,  in  the  Civil  District  Court  for  the  parish  of  Or- 
leans. Li  that  case  the  relator  set  up  the  recovery  of  the 
judgment  in  the  state  court;  that  under  Act  No.  5  of  1870 
(to  be  noticed  hereafter)  no  writ  oi  fieri  facias  could  be  issued; 
that  the  city  had  no  money  or  property  liable  to  seizure,  if 
such  a  writ  could  be  issued;  that  the  judgment  had  been  regis- 
tered under  said  act  in  the  office  of  the  city  comptroller  on 
March  26,  1906;  that  the  basis  upon  which  the  said  judgment 
waa  rendered  was  a  contractual  and  statutory  obUgation  im- 
posed upon  the  city  of  New  Orleans  to  levy,  collect  and  pay 
to  the  Board  of  Metropolitan  Police  the  sums  apportioned  to 
it  imder  the  act  of  1868  creating  the  board  and  the  acts  amend- 
atory thereto.  The  petition  averred  that  the  maximum  rate 
i  of  taxation  for  the  years  1869-1877  inclusive  had  not  been 

;  levied,  and  prayed  a  writ  of  mandamus  requiring  the  city  of 

New  Orleans,  through  its  mayor  and  council,  to  levy  and  pay 
over  to  the  relator  as  receiver  a  tax  of  one  mill  on  property 
within  the  city  of  New  Orleans,  or  so  much  thereof  as  might 
be  necessary  to  satisfy  the  judgment.  The  city  appeared  and 
answered,  and  claimed  the  benefit  of  Act  No.  5  of  the  extra 
session  of  1870,  and  that  under  §  29  of  the  act  of  1868,  above 
set  forth,  the  city  had  levied  the  tax  apportioned  to  the  Board 
of  Metropolitan  PoUce,  and  that  the  city's  power  of  taxation 
in  the  premises  had  been  fully  exercised  and  exhausted. 

On  November  12,  1906,  the  Civil  District  Court  rendered 
a  judgment  dismissing  the  relator's  petition  for  mandamus. 
Upon  appeal  the  Supreme  Court  of  Louisiana  affirmed  this 
judgment.  State  v.  Mayor  &c,  of  New  Orleans,  119  Louisiana, 
fi23.  The  present  writ  of  error  brings  this  judgment  here  for 
review. 


: 


174  OCTOBER  TERM,  1909 

OpiiiiOQ  of  the  Court.  215  U.  8. 

In  the  opinion  of  the  Supreme  Court  of  Louisiana  it  appears 
that  the  hssis  of  the  judgment  upon  which  the  relator  sued 
was  held  not  to  be  contractual  in  its  nature,  and,  further, 
that  the  State,  having  abolished  the  Metropolitan  Police 
Board,  the  only  standing  of  the  relator  for  the  purposes  of 
this  suit  was  as  the  representative  of  third  persons  who  may 
have  made  contracts  with  the  board  which  were  dependent 
upon  taxes  receivable  from  the  city  for  their  fulfillment.  The 
learned  court  then  pointed  out  an  apparent  inconsistency 
between  the  petition  for  mandamus  in  this  case  and  the  peti- 
tion on  which  the  original  judgment  was  awarded,  and  said, 
on  p.  630: 

"In  the  brief  presented  on  behalf  of  relator,  for  the  pur- 
poses of  the  present  application,  his  counsel  say : '  This  is  not 
a  proceeding  to  compel  the  city  of  New  Orleans  to  levy  a 
special  police  tax.  The  city  has  actually  levied  and  collected 
the  tax.  The  tax  levy  having  been  made,  in  compliance  with 
the  statute,  and  having  been  collected  by  the  city,  gave  rise 
to  a  cause  of  action  in  favor  of  the  receiver  to  enforce  its  pay- 
ment to  the  Board  of  Metropolitan  Police.  This  cause  of  ac- 
tion, therefore,  could  not  have  arisen  until  the  city  had  levied 
and  collected  the  tax  and  refused  to  pay  over  the  proceeds.' 

"Assuming  that  the  position  that  the  relator  now  wishes 
to  occupy  is  correctly  stated  in  the  foregoing  excerpt,  we 
take  it  to  be  conceded  that  the  city  has  levied  and  collected 
all  the  taxes  authorized  or  required  by  the  metropoKtan  po- 
lice legislation ;  and,  fiuther  assuming  that  the  relator  repre- 
sents the  holders  of  the  indebtedness  (of  the  police  board) 
referred  to  in  the  petition  uj)on  which  he  obtained  his  judg- 
ment (though  it  is  not  so  alleged  in  the  application  now  being 
considered),  the  question  still  remains:  Does  he  disclose  and 
make  out  a  case  which  entitles  him  to  a  writ  of  mandamus 
to  compel  the  city  to  levy  and  collect  an  additional  tax  in 
order  to  make  good  its  failure  to  pay  over  the  tax  already 
levied  and  collected?  *' 

The  court,  therefore,  treated  the  petition  for  mandamus 


HUBERT  V,  NEW  ORLEANS.  175 

215  U.  S.  Opinion  of  the  Court. 

as  one  based  upon  a  judgment  to  recover  taxes  which  the  city 
had  collected  and  not  paid  over.  Considering  the  case  in  this 
aspect,  the  learned  court  held  that  the  power  to  levy  taxes 
for  the  various  years  for  Metropolitan  Police  District  pur- 
poses had  been  exhausted,  and  that  there  was  no  power  to 
relevy  such  tax;  and,  further,  that  as  to  liabilities  incurred 
after  the  passage  of  Act  No.  5  of  1870,  that  act  was  a  defense 
to  the  action;  and  the  court  reached  the  conclusion  that  the 
application  for  mandamus  must  fail,  as  it  was  an  attempt  to 
require  the  city  to  exert  powers  of  taxation  already  exhausted, 
and  which  no  longer  existed. 

In  order  to  review  in  this  court  the  judgment  of  a  state 
court  because  of  the  provision  of  the  Federal  Constitution 
against  state  legislation  impairing  the  obligation  of  a  con- 
tract, the  impairment  must  be  by  some  subsequent  legisla- 
tion of  the  State  which  has  been  upheld  or  given  effect  in  the 
judgment  of  the  state  court  sought  to  be  reviewed.  Bojcon  v. 
Texas,  163  U.  S.  207.  While  this  is  true,  this  court  is  not  lim- 
ited to  the  consideration  of  the  mere  language  of  the  opinion, 
but  will  examine  the  substance  and  effect  of  the  decision. 
McCuOaugh  v.  Virginia,  172  U.  S.  102,  116. 

It  appears  from  the  documents  attached  to  and  made  part 
of  the  record  that  the  indebtedness  represented  by  the  re- 
ceiver in  this  case  was  for  outstanding  debts  of  the  Metropoli- 
tan Police  Board  in  the  years  1869-1877  inclusive,  a  congider- 
able  part  of  it  being  for  salaries  of  policemen,  and  the  Supreme 
Court  of  Louisiana  has  held  that  the  taxes  of  several  years, 
from  1869  to  1876  inclusive,  constitute  one  fimd  out  of  which 
the  warrants  of  the  defunct  Metropolitan  Police  Board  are 
payable.  Brittin  v.  The  City  of  New  Orleans,  106  Louisiana, 
469. 

A  number  of  decisions  in  this  court  have  settled  the  law  to 
be  that  where  a  municipal  corporation  is  authorized  to  con- 
tract, and  to  exercise  the  power  of  local  taxation  to  meet  its 
contractual  engagements,  this  power  must  continue  until  the 
contracts  are  satisfied,  and  that  it  is  an  impairment  of  an  ob- 


176  OCTOBER  TERM/  1909. 

Opinion  of  the  Court.  215  XT.  8. 

ligation  of  the  contract  to  destroy  or  lessen  the  means  by 
which  it  can  be  enforced.  In  the  case  of  Wolff  v.  New  Orleans^ 
103  U.  S.  358,  the  subject  was  given  full  consideration,  and 
the  doctrine  thus  summarized  by  Mr.  Justice  Field,  speaking 
for  the  court  (p.  365) : 

"  It  is  true  that  the  power  of  taxation  belongs  exclusively 
to  the  legislative  department,  and  that  the  legislature  may 
at  any  time  restrict  or  revoke  at  its  pleasure  any  of  the  powers 
of  a  municipal  corporation,  including,  among  others,  that  of 
taxation,  subject,  however,  to  this  qualification,  which  at- 
tends all  state  legislation,  that  its  action  in  that  respect  shall 
not  conflict  with  the  prohibitions  of  the  Constitution  of  the 
United  States,  and,  among  other  things,  shall  not  operate 
directly  upon  contracts  of  the  corporation,  so  as  to  impair 
their  obligation  by  abrogating  or  lessening  the  means  of  their 
enforcement.  Legislation  producing  this  latter  result,  not 
indirectly  as  a  consecjuence  of  legitimate  measures  taken,  as 
will  sometimes  happen,  but  directly  by  operating  upon  those 
means,  is  prohibited  by  the  Constitution,  and  must  be  disre- 
garded— ^treated  as  if  never  enacted — by  all  courts  recogniz- 
ing the  Constitution  as  the  paramount  law  of  the  land.  This 
doctrine  has  been  repeatedly  asserted  by  this  court  when 
attempts  have  been  made  to  limit  the  power  of  taxation  of 
a  municipal  body,  upon  the  faith  of  which  contracts  have 
been  made,  and  by  means  of  which  alone  they  could  be  per- 
formed. .  .  (p.  367).  The  prohibition  of  the  Constitution 
against  the  passage  of  laws  impairing  the  obligation  of  con- 
tracts applies  to  the  contracts  of  the  State,  and  to  those  of  its 
agents  acting  under  its  authority,  as  well  as  to  contracts  be- 
tween individuals.  And  that  obligation  is  impaired,  in  the 
sense  of  the  Constitution,  when  the  means  by  which  a  con- 
tract at  the  time  of  its  execution  could  be  enforced,  that  is, 
by  which  the  parties  could  be  obliged  to  perform  it,  are  ren- 
dered less  efficacious  by  legislation  operating  directly  upon 
those  means." 

In  RaRs  County  Court  v.  United  States^  105  U.  S.  733,  it  was 


HUBERT  r.  NEW  ORLEANS.  177 

215  U.  S.  Opinion  of  the  Court. 

held  that,  after  a  debt  was  created  uj)on  certain  bonds,  laws 
passed  depriving  the  county  court  of  the  power  to  levy  the 
tax  which  it  possessed  when  the  bonds  were  issued  were  in- 
valid. In  that  case  the  suit  was  brought  upon  certain  coupons, 
and  it  was  held  that  the  coupons  were  merged  in  the  judg- 
ment, but  nevertheless  carried  with  them  into  the  judgment 
all  the  remedies  which  in  law  formed  a  part  of  their  contract 
obligation,  and  that  those  remedies  might  still  be  enforced, 
notwithstanding  the  changes  in  the  form  of  the  debt. 

In  dealing  with  the  feature  important  to  be  considered  in 
this  case  the  court,  speaking  by  Mr.  Chief  Justice  Waite,  said 
(p.  738) : 

"  It  follows  from  this  that  all  laws  of  the  State  which  have 
been  passed  since  the  bonds  m  question  were  issued,  purport- 
ing to  take  away  from  the  county  courts  the  power  to  levy 
taxes  necessary  to  meet  the  payments,  are  invalid,  and  that, 
under  the  well-settled  rule  of  decision  in  this  coiut,  the  Cir- 
cuit Coiut  had  authority  by  mandamus  to  require  the  county 
court  to  do  all  the  law,  when  the  bonds  were  issued,  required 
it  to  do  to  raise  the  means  to  pay  the  judgment,  or  something 
substantially  equivalent.  The  fact  that  money  has  once  been 
raised  by  taxation  to  meet  the  payment,  which  has  been  lost, 
is  no  defense  to  this  suit.  The  claim  of  the  bondholders  con- 
tinues until  payment  is  actually  made  to  them.  If  the  funds 
are  lost  after  collection,  and  before  they  are  paid  over,  the 
loss  falls  on  the  county  and  not  the  creditors.  The  writ  as 
issued  was  properly  in  the  alternative  to  pay  from  the  money 
already  raised,  or  levy  a  tax  to  raise  more.  It  will  be  time 
enough  to  consider  whether  the  command  of  the  writ  that  the 
court  caiise  the  tax  to  be  collected  is  in  excess  of  the  require- 
ments of  the  law,  when  the  justices  of  the  court  are  called  on 
to  show  why  they  have  not  obeyed  the  order." 

We  think  the  doctrine  of  the  Ralls  County  case  when  ap- 
plied to  the  facts  in  the  case  at  bar  is  decisive  of  this  feature 
of  it.  The  city  levied  and  afterwards  collected  taxes  for  the 
benefit  of  the  Metropolitan  Police  Board.  The  Police  Board 
VOL.  ccxv — 12 


178  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

had  issued  its  outstanding  warrants  for  salaries,  etc.,  upon  the 
faith  of  the  exercise  of  the  taxing  power  for  their  payment. 
The  contract  creditors  of  the  Police  Board  were  entitled  to 
rely  upon  the  benefit  of  the  laws  imposing  taxation  to  make 
their  obligations  effectual.  They  could  not,  constitutionally, 
be  deprived  of  such  benefit.  While  it  is  true  that  the  Police 
Board  made  the  contracts,  the  only  means  of  keeping  them 
was  through  the  exercise  of  the  power  of  taxation  conferred 
by  law  upon  the  city.  The  city  exerted  its  power,  as  required 
by  law,  levied  and  collected  the  taxes,  but  appKed  them  to 
other  purposes,  and  has  failed  to  turn  them  over  upon  demand. 
We  think  the  power  to  levy  these  taxes  still  exists.  As  to  the 
creditor,  deprived  thereof  by  the  action  of  the  city,  it  is  as 
though  such  power  had  never  been  exercised.  The  city  stiD 
has  the  power  to  levy  these  taxes  for  the  benefit  of  the  per- 
sons for  whom  they  were  intended,  and  who  had  a  contract 
right  to  the  exertion  of  the  remedies  for  the  satisfaction  of 
their  claims  by  the  levy  and  collection  of  taxes  existing  when 
their  debts  accrued,  which  right  could  not  be  taken  away 
from  them  by  subsequent  legislation.  The  power  of  taxation 
conferred  by  law  entered  into  the  obligation  of  the  contracts, 
and  any  subsequent  legislation  withdrawing  or  lessening  such 
power,  leaving  the  creditors  without  adequate  means  of  sat- 
isfaction, impaired  the  obligation  of  their  contracts  within  the 
meaning  of  the  Constitution.  Memphis  v.  United  States,  97 
U.  S.  293;  Van  Hoffman  v.  City  of  Quincy,  4  Wall.  535;  iSei- 
bert  V.  Leads,  122  U.  S.  284;  Mobile  v.  Watson,  116  U.  S.  289; 
Scotland  County  Court  v.  HiU,  140  U.  S.  41. 

We  come  now  to  the  question:  Can  Act  No.  5  of  1870  be 
constitutionally  applied  so  as  to  preclude  the  remedy  sought 
in  behalf  of  the  receiver  in  this  case?  This  act  has  been  at 
least  twice  before  this  court.  In  the  case  of  Louisiana  v.  New 
Orleans,  102  U.  S.  203,  205,  the  provisions  of  the  act  were 
summarized  by  Mr  Justice  Field,  speaking  for  the  court,  as 
follows :    . 

"That  act  divests  the  courts  of  the  State  of  authority  to 


HUBERT  V,  NEW  ORLEANS.  179 

215  U.  S.  Opinion  of  the  Court. 

allow  any  summary  process  or  mandamus  against  the  officers 
of  the  city  of  New  Orleans  to  compel  the  issue  and  delivery 
of  any  order  or  warrant  for  the  payment  of  money,  or  to  en- 
force the  payment  of  money  claimed  to  be  due  from  it  to  any 
person  or  corporation;  and  requires  proceedings  for  the  re- 
covery of  money  claimed  to  be  owing  by  the  city  to  be  con- 
ducted in  the  ordinary  form  of  action  against  the  corporation, 
and  not  against  any  department,  branch,  or  officer  thereof. 
The  act  also  provides  that  no  writ  of  execution  or  fieri  facias 
shall  issue  against  the  city,  but  that  a  final  judgment  against 
it,  which  has  become  executory,  shall  have  the  effect  of  fix- 
ing the  amount  of  the  plaintiff's  demand,  and  that  he  may 
cause  a  certified  copy  of  it,  with  his  petition  and  the  defend- 
ant's answer  and  the  clerk's  certificate  that  it  has  become 
executory,  to  be  filed  in  the  office  of  the  controller,  and  that 
thereupon  it  shall  be  the  duty  of  the  controller  or  auditing 
officer  to  cause  the  same  to  be  registered,  and  to  issue  a  war- 
rant upon  the  treasurer  or  disbursing  officer  of  the  corpora- 
tion for  the  amount  due  thereon,  without  any  specific  appro- 
priation therefor,  provided  there  be  sufficient  money  in  the 
treasury  specially  designated  and  set  apart  for  that  purpose 
in  the  annual  budget  or  detailed  statement  of  items  of  liability 
and  expenditures  pursuant  to  the  existing  or  a  subsequent  law. 

"The  act  further  provides  that  in  case  the  amount  of 
money  designated  in  the  annual  budget  for  the  payment  of 
judgments  against  the  city  of  New  Orleans  shall  have  been 
exhausted,  the  common  council  shall  have  power,  if  they 
deem  it  proper,  to  appropriate  from  the  money  set  apart  in 
the  budget  or  annual  estimate  for  contingent  expenses,  a 
sufficient  sum  to  pay  the  same;  but  if  no  such  appropriation 
be  made,  then  that  all  judgments  shall  be  paid  in  the  order 
in  which  they  shall  be  filed  and  registered  in  the  office  of  the 
controller  of  the  city  from  the  first  money  next  annually  set 
apart  for  that  purpose." 

In  that  case  it  was  held  that,  in  so  far  as  the  act  requires 
registration  of  a  judgment,  it  did  not  impair  existing  remedies 


180  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

for  its  collection,  and  must  be  complied  with,  Mr.  Justice 
Field  saying  (p.  206) : 

''The  obUgation  of  a  contract,  in  the  constitutional  sense, 
is  the  means  provided  by  law  by  which  it  can  be  enforced, — 
by  which  the  parties  can  be  obliged  to  perform  it.  Whatever 
legislation  lessens  the  efficacy  of  these  means  impairs  the  ob- 
Ugation. If  it  tend  to  postpone  or  retard  the  enforcement  of 
the  contract,  the  obUgation  of  the  latter  is  to  that  extent 
weakened.  The  Latin  proverb.  Qui  cUo  dot  bis  dot — ,he  who 
gives  quickly  gives  twice, — has  its  counterpart  in  a  maxim 
equally  sound — jQui  serius  solvit,  minus  solvit, — he  who  pays 
too  late  pays  less.  Any  authorization  of  the  postponement 
of  payment,  or  of  means  by  which  such  postponement  may 
be  effected,  is  in  conflict  with  the  constitutional  inhibition. 
If,  therefore,  we  could  see  that  such  would  be  the  effect  of  the 
provision  of  the  act  of  the  State,  No.  5  of  1870,  requiring  judg- 
ments to  be  registered  with  the  controller  before  they  are 
paid,  we  should  not  hesitate  to  declare  the  provision  to  be 
invaUd.  But  we  are  not  able  to  see  anything  in  the  require- 
ment which  impedes  the  coUection  of  the  relator's  judgments, 
or  prevents  his  resort  to  other  remedies,  if  their  payment  be 
not  obtained.  The  registry  is  a  convenient  means  of  inform- 
ing the  city  authorities  of  the  extent  of  the  judgments,  and 
that  they  have  become  executory,  to  the  end  that  proper  steps 
may  be  taken  for  their  payment.  It  does  not  impair  existing 
remedies." 

The  act  was  again  before  this  court  in  the  case  of  Wolff  v. 
New  OrkanSj  103  U.  S.  358.  In  that  case  the  act  was  fuUy 
analyzed,  and  it  was  pointed  out  that  the  payment  of  judg- 
ments thereunder  was  extremely  uncertain  and  depended 
entirely  upon  the  discretion  of  the  council,  after  providing 
for  other  municipal  purposes  and  expenses,  and  was  in  direct 
violation  of  powers  of  taxation  which  existed  at  the  time  the 
debt  sued  for  in  that  case  was  created,  and  could  not  be  con- 
stitutionally enforced  as  against  such  claim. 

Applying  the  principles  thus  announced  to  the  case  at  bar, 


HUBERT  V.  NEW  ORLEANS.  181 

215  U.  8.  Opinion  of  the  Court. 

we  think  Act  No.  5  of  1870,  postponing  indefinitely  the  pay- 
ment of  relator's  judgment,  if  given  effect,  would  deprive  the 
receiver,  as  the  representative  of  the  interested  creditors,  of 
the  benefit  of  the  right  of  taxation  for  the  payment  of  their 
claims  which  existed  before  the  passage  of  the  act  of  1870. 
By  §  29  of  the  act  of  September  14,  1868,  above  quoted,  the 
common  council  of  the  city  of  New  Orleans  and  others  were 
empowered  and  directed  annually  to  order  and  caused  to  be 
raised  and  collected  by  a  tax  upon  the  estates,  real  and  per- 
sonal, subject  to  taxation  within  said  city,  the  sums  of  money 
annually  estimated  and  apportioned  as  the  share  of  such  city 
for  the  total  expense  of  the  MetropoKtan  Police  District.  This 
act  was  followed  by  other  supplementary  and  amendatory 
acts  to  make  the  purpose  more  effectual,  and  was  not  repealed 
until  the  act  of  March  31,  1877,  which  abolished  the  Metro- 
politan Police  Board.  This  repeal  could  not  take  away  the 
right  of  the  creditors  of  the  Metropolitan  Police  Board  to 
have  taxation  for  their  benefit.  Nor  could  the  act  of  1870 
constitutionally  take  away  the  rights  created  by  former  legis- 
lation for  the  security  of  their  debts  and  postpone  indefinitely 
the  pa3anent  of  their  claims  until  such  time  as  the  city  was 
ready  and  willing  to  pay  them. 

We  are  of  opinion  that  the  writ  of  mandamus  should  have 
been  awarded  in  favor  of  the  relator,  requiring  the  city  to  pay 
over  the  taxes  for  which  the  judgment  was  rendered,  or  to 
levy  and  collect  a  tax  therefor  for  the  benefit  of  the  relator  as 
receiver.  The  judgment  of  the  Supreme  Court  of  Louisiana 
is  reversed  and  the  cause  remanded  to  that  court  for  further 
proceedings  not  inconsistent  with  this  opinion. 

Reversed. 


182  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  216  U.  S. 


CALIGA  V.  INTER  OCEAN  NEWSPAPER  COMPANY. 

ERROR  TO  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS 

FOR  THE  SEVENTH  CIRCUIT. 

No.  22.     Argued  November  5,  1909.—Decided  November  29,  1909. 

Statutory  copyright  is  not  to  be  confounded  with  the  exclusive  prop- 
erty of  the  author  in  his  manuscript  at  common  law. 

In  enacting  the  copyright  statute  Congress  did  not  sanction  an  exist- 
ing right  but  created  a  new  one  dependent  on  compliance  with  the 
statute. 

Under  existing  copyright  law  of  the  United  States  there  is  no  provision 
for  filing  amendments  to  the  first  application;  and,  the  matter  being 
wholly  subject  to  statutory  regulation,  copyright  on  a  second  appli- 
cation cannot  be  sustained. 

The  statutory  limit  of  copyright  cannot  be  extended  by  new  applica- 
tions. 

157  Fed.  Rep.  186,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Otto  Raymond  Bamettj  with  whom  Mr,  Clarence  T. 
Morse  was  on  the  brief,  for  plaintiff  in  error : 

Copyright  exists  at  common  law  as  an  incident  to  owner- 
ship. It  may  be  lost  by  publication.  The  copyright  statutes 
specify  what  steps  must  be  taken  to  avoid  such  loss  upon  pub- 
lication. Myers  v.  CaUaghaUy  5  Fed.  Rep.  726;  Wheaton  v. 
Peters,  8  Peters,  591;  Board  of  Trade  v.  Commission  Co.,  103 
Fed.  Rep.  902;  MiUar  v.  Taylor,  4  Burr.  2303;  Donaldson  v. 
Becket,  4  Burr.  2408. 

Copyright  law  is  to  be  construed  liberally  and  beneficially. 
Nothing  but  a  general  publication  or  an  express  surrender  of 
his  rights  will  affect  a  proprietor's  common-law  copyright  prop- 
erty. AUan  V.  Black,  56  Fed.  Rep.  754;  Myers  v.  CaUaghan, 
128  U.  S,  617. 

A  general  publication  is  one  which  gives  an  express  or  im- 
plied right  to  copy  the  thing  published. 

An  exhibition  of  a  painting  under  conditions  which  do  not 


CALIGA  V.  INTER  OCEAN  NEWSPAPER.        183 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

give  to  the  public  a  right  to  copy  does  not  amount  to  a  general 
publication.  LaM  v.  Oxnard,  75  Fed.  Rep.  730;  Werckmeister 
V.  American  Lithographic  Co.,  134  Fed.  Rep.  321. 

A  deposit  of  a  photograph  in  the  Library  of  Congress  in  com- 
pliance with  the  copyright  statutes  merely  serves  to  identify 
the  thing  to  be  copyrighted  and,  not  giving  any  express  or 
impUed  right  to  copy,  does  not  amount  to  a  publication. 

Under  the  statute  the  only  condition  which  will  prevent  ob- 
taining a  copyright  is  prior  publication.  Rev.  Stat.,  §§  4952, 
4956.  A  copyright  registration  may  be  abandoned  by  failure 
to  publish  within  a  reasonable  time  after  such  registration. 
In  such  event  the  common-law  right  never  ceases.  Boud- 
cauU  V.  Hart,  Fed.  Cas.  No.  1,692;  CariUo  v.  Shook,  Fed.  Cas, 
No.  2,407. 

If,  therefore,  a  registration  may  be  abandoned  by  failure 
to  publish  within  a  reasonable  time,  it  may  also  be  abandoned 
by  a  subsequent  re-registration  in  the  absence  of  any  inter- 
mediate publication.  Osgood  v.  Aloe  Inst.  Co,,  69  Fed.  Rep. 
291. 

Common  law  cop3night  and  statutory  copyright  cannot  co- 
exist, the  first  only  terminates  upon  a  general  publication,  the 
second  only  begins  upon  a  general  publication.  Prior  to  such 
pubhcation,  common-law  copyright  remains  unimpaired  not- 
withstanding any  registration  which  may  have  been  made 
with  the  Librarian  of  Congress  for  the  purpose  of  obtaining 
the  protection  of  statutory  copyright.  Bobbs-MerriU  Co.  v. 
Straus,  210  U.  S.  339,  347;  Press  Publishing  Co.  v.  Monroe,  164 
U.  S.  105;  BaudcauU  v.  Hart,  Fed.  Cas.  No.  1,692;  CariUo  v. 
Shook,  Fed.  Cas.  No.  2,407. 

The  title  of  a  copyrighted  publication  must  correspond  with 
the  title  filed  for  purpose  of  copyright  with  the  Librarian  of 
Congress.  Mijglin  v.  White,  190  U.  S.  260. 

The  copyright  statute  providing  a  penalty  for  infringement 
is  in  form  penal,  but  is  remedial  in  intent.  Dwight  v.  Appleton, 
Fed.  Cas.  No.  4215. 

Plaintiff's  only  legal  remedy  for  copyright  infringement  is 


184  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

under  Rev.  Stat.,  §4965,  for  the  penalty  there  provided. 
Walker  v.  Globe  Newspaper  Co.,  130  Fed.  Rep.  594. 

Publication  by  a  licensee  of  a  copyrighted  work  without 
marking  such  reproduction  "copyrighted,"  etc.,  does  not  in- 
validate the  copyright.  Press  Assn.  v.  Daily  Story  Co.,  120 
Fed.  Rep.  766. 

Any  unauthorized  reproduction  of  a  copyrighted  painting, 
or  of  the  substance  thereof,  whether  by  a  newspaper  cut  or 
otherwise,  is  an  infringement  of  the  copyright.  Werckmeis- 
tery.P.A  B,  Mfg.  Co.,  63  Fed.  Rep.  445,  449;  Schumacher  v. 
Schroenke,  30  Fed.  Rep.  690;  Folk  v.  Donaldson,  57  Fed.  Rep. 
32;  Springer  Co.  v.  Folk,  59  Fed.  Rep.  707;  Sanborn  Co.  v. 
DaJcin  Co.,  39  Fed.  Rep.  266. 

The  variance  between  the  date  of  copyright  registration 
pleaded  under  a  videlicet,  and  the  dates  proven  was  not  fatal, 
even  if  the  registration  of  November,  1901,  were  a  nullity. 
Greenleaf  on  Evidence,  §  61 ;  Stephen  on  Pleading,  292;  Rawle's 
Bouvier,  1195;  1  Chitty  PI.  257;  AUen  v.  Black,  56  Fed.  Rep. 
754;  Myers  v.  CaUaghan,  128  U.  S.  617;  Salt  Lake  City  v. 
Smith,  104  Fed.  Rep.  467;  Wheder  v.  Read,  36  Illinois,  85; 
Beaver  v.  SlanJcer,  94  Illinois,  175,  185;  Reinback  v.  Crabtree, 
77  Illinois,  188;  Long  v.  ConMin,  75  Illinois,  33;  United  States 
V.  Le  Baron,  4  Wall.  648;  Taylor  v.  Bank  of  Alexandria,  5 
Leigh  (Va.),  512;  Martin  v.  MiUer,  3  Missouri,  99;  Henry  v. 
TUson,  17  Vermont,  479. 

Mr.  James  J.  Barbour,  with  whom  Mr.  Clarence  A.  Knight 
was  on  the  brief  for  defendant  in  error : 

Where  two  copyrights  of  the  same  painting  are  procured  by 
the  painter  thereof,  the  second  copyright  is  void.  Mifflin  v. 
Dutton,  112  Fed.  Rep.  1004;  Laiurence  v.  Dana,  15  Fed.  Gas. 
No.  8,136;  Black  v.  Murray,  9  Sc.  Sess.  Gas.,  3d  Ser.,  341; 
Thomas  V.  Turner,  33  Gh.  Div.  292;  Scrutton,  Law  of  Gopy- 
right,  119;  Drone  on  Gopyright,  146;  Macgillivray  on  Gopy- 
rights,  27. 

A  patentee  cannot  have  two  patents  for  the  same  inven- 


CALIGA  V,  INTER  OCEAN  NEWSPAPER.        186 
215  U.  S.  Argument  for  Defendant  in  Error. 

tion.  22  Am.  &  Eng.  Ency.  314;  Miller  v.  Eagle  Mfg.  Co.,  151 
U.  S.  186;  Suffolk  Co.  v.  Hayden,  3  Wall.  315;  James  v.  Camp- 
beU,  104  U.  S.  356;  Mosler  Safe  Co.  v.  Mosler,  127  U.  S.  354; 
McCreary  v.  Pa.  Canal  Co.,  141  U.  S.  459;  Underwood  v.  Ger- 
6er/149U.S.224. 

The  reasons  are  that  the  power  to  create  a  monopoly  is  ex- 
hausted by  the  first  grant,  and  a  new  patent  for  the  same  in- 
vention would  operate  to  extend  the  monoj)oly  beyond  the 
period  allowed  by  law.  Odiome  v.  Amesbury  Nail  Factory,  2 
Mason,  28;  Miller  v.  Eagle  Mfg,  Co.,  151  U.  S.  186. 

W^hatever  rights  are  possessed  by  the  proprietor  of  a  copy- 
right are  derived  from  the  copyright  act  and  not  from  the 
common  law.  White-Smith  Music  Co.  v.  Apollo  Co.,  209  U.  S. 
1;  S.  C,  147  Fed.  Rep.  226;  BMs-MerriU  Co.  v.  Straus,  210 
U.  S.  339;  S.  C,  147  Fed.  Rep.  15;  Globe  Newspaper  Co.  v. 
Walker,  210  U.  S.  356;  Wheaton  v.  Peters,  8  Pet.  591 ;  Stevens  v. 
Glading,  17  How.  447;  Banks  v.  Manchester,  128  U.  S.  244; 
Thomas  v.  Hubbard,  131  U.  S.  123;  Holmes  v.  Hurst,  174  U.  S. 
82;  Palmer  v.  DeWiU,  47  N.  Y.  532. 

The  painting  was  published  prior  to  the  date  of  the  applica- 
tion for  the  copyright  of  November  7.  The  procurement  of  a 
copyright  is  a  publication  within  the  meaning  of  the  statute, 
and  vitiates  a  later  copyright.  Jewelers*  Agency  v.  Jewelers 
Pvb.  Co.,  155  N.  Y.  241 ;  Bobbs-MerriU  Co.  v.  Straus,  147  Fed. 
Rep.  15. 

The  selling  or  offering  for  sale  of  photographs  of  a  painting  is 
a  pubUcation  of  the  painting.  Am.  Tobacco  Co.  v.  Werckmeis- 
ter,  146  Fed.  Rep.  375. 

Compliance  with  the  statutory  requirement  that  the  notice 
of  copyright  shall  be  placed  upon  all  copies  sold  must  be 
pleaded  and  proved  as  a  prerequisite  to  an  action  for  recovery 
of  penalties  for  an  infringement  of  the  copyright.  Ford  v. 
Blaney  AmusemerU  Co.,  148  Fed.  Rep.  642;  Folk  v.  Gast  Lith. 
&  Eng.  Co.,  40  Fed.  Rep.  168;  Mifflin  v.  Button,  190  U.  S. 
265;  Higgins  v.  Keuffd,  140  U.  S.  428;  Thompson  v.  Hubbard, 
131  U.  S.  123. 


186  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  S. 

Where  a  painter  by  repainting  a  copyrighted  picture  effects 
a  substantial  change,  the  original  copyright  does  not  protect 
the  picture  as  repainted.  Rev.  Stat.,  §  4959,  and  see  Fed. 
Stat.  Ann.;  Lawrence  v.  Dana^  15  Fed.  Gas.  No.  8,136;  Drone 
on  Copyrights,  146;  9  Cyc.  924. 

In  an  action  to  recover  for  an  infringement  of  a  cop3night  it 
must  be  shown  that  the  pubHcation  complained  of  is  a  copy  of 
or  copied  from  the  copyrighted  painting.  Reproduction  of  a 
copyrighted  photograph  of  a  painting  is  not  an  infringement 
of  the  copyright  on  the  painting.  Champney  v.  Haag,  121  Fed. 
Rep.  944. 

The  insertion  or  impression  of  a  copyright  notice  upon  a 
painting  before  applying  for  a  copyright  is  prohibited.  Rev, 
Stat.,  §  4963,  and  see  Fed.  Stat.  Ann. 

A  variance  can  only  be  where  there  is  a  clear  discrepancy 
between  averment  and  proof.  29  Am.  &  Eng.  Ency.  580; 
Walfard  v.  Anthony,  21  E.  C.  L.  75. 

A  brief  by  Mr,  E,  L.  Cobum  and  Afr.  Josiah  M.  McRdberts 
was  filed  by  leave  of  the  court  for  the  Tribune  Company  as 
amicus  curies  to  which  a  reply  brief  was  filed  by  the  counsel  for 
plaintiff  in  error. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  also  plaintiff  below,  brought  an  action 
in  the  Circuit  Coiut  of  the  United  States  for  the  Northern  Dis- 
trict of  Illinois  to  recover  damages  under  §  4965  of  the  Revised 
Statutes  of  the  United  States,  because  of  the  publication  by 
the  defendant  of  more  than  one  thousand  copies  of  a  newspa- 
per containing  a  picture  of  a  painting,  copyrighted  by  the 
plaintiff.  The  plaintiff  alleged  that  he  had  in  all  respects  com- 
plied with  the  Revised  Statutes  of  the  United  States  by  caus- 
ing to  be  deposited,  on  or  about  the  fifth  day  of  November, 
1901,  a  photograph  and  a  description  of  the  painting  for  the 
purpose  of  having  it  copjrighted,  which  deposit  was  before 


CALIGA  V.  INTER  OCEAN  NEWSPAPER.        187 
215  U.  S.  Opinion  of  the  Court. 

publication  of  the  same  in  the  United  States  or  in  any  foreign 
country.  By  reason  of  the  premises  and  the  compliance  with 
the  statutes  of  the  United  States  the  plaintiflF  claimed  to  be  en- 
titled to  a  copyright  for  the  painting  for  the  term  of  twenty- 
eight  years  from  and  after  the  recording  of  the  title  thereof  by 
the  Librarian  of  Congress  on  November  7,  1901. 

There  were  other  allegations,  and  proofs  tending  to  show  a 
pubhcation  of  a  copy  of  the  photograph  in  the  newspaper  of 
the  defendant  company.  In  the  course  of  the  trial  it  appeared 
that  the  plaintiff  had  deposited  a  description  and  photograph 
of  the  same  painting  with  the  Librarian  of  Congress  on  Octo- 
ber 7,  1901,  for  the  purpose  of  securing  a  copyright.  The  trial 
court  charged  the  jury,  as  a  matter  of  law,  that  the  plaintiff 
had  brought  his  suit  upon  the  wrong  copyright,  and  therefore 
directed  a  verdict  in  favor  of  the  defendant.  Upon  writ  of 
error  the  Circuit  Court  of  Appeals  for  the  Seventh  Circuit 
aflBrmed  this  judgment.  Caliga  v.  Inter  Ocean  Newspaper  Co,, 
157  Fed.  Rep.  186.   The  case  is  now  here  for  review. 

The  photographs  filed  upon  the  two  applications  for  a  copy- 
right are  identical.  Nor  is  any  substantial  change  in  the 
painting  shown;  the  copyrights  undertaken  to  be  secured  were, 
therefore,  upon  the  same  painting.  The  difference  is  that  in 
the  copyright  sued  upon,  that  of  November  7,  1901,  the  title 
and  description  are,  "The  Guardian  Angel.  Portrait  of  a 
young  girl  sitting,  hair  arranged  smoothly  over  the  ears,  hair 
parted  in  the  middle.  Her  guardian  angel  stands  behind  her, 
one  hand  resting  on  her  left  shoulder,  the  other  on  her  right 
arm."  The  description  accompanying  the  application  for  the 
cop3aight  of  October  7,  1901,  is,  "Maidenhood;  A  Young  Girl 
seated  beside  a  Window;  An  Angel  stands  behind  her." 

The  question  in  this  case  is :  Is  the  second  attempt  to  copy- 
right valid  and  effectual,  or  was  the  court  right  in  charging  in 
substance  that  it  was  void  and  of  no  effect? 

We  have  had  such  recent  and  frequent  occasions  to  con- 
sider the  nature  and  extent  of  the  copyright  laws  of  the  United 
States,  as  the  same  were  before  the  recent  revision,  which  took 


188  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

effect  July  1, 1909,  that  it  is  unnecess^try  to  enter  into  any  ex- 
tended discussion  of  the  subject  now.  Bobbs-MerriU  Co.  v. 
Straus,  210  U.  S.  339;  White-Smith  Music  Pub.  Co.  v.  ApoUo 
Company,  209  U.  S.  1;  American  Tobacco  Company  v.  Werck- 
meister,  207  U.  S.  284;  Bong  v.  CampbeU  Art  Co.,  214  U.  S.  236. 
In  these  cases  the  previous  cases  in  this  court  were  cited  and 
reviewed. 

As  a  result  of  the  decisions  of  this  court  certain  general 
propositions  may  be  affirmed.  Statutory  copyright  is  not  to 
be  confounded  with  the  common-law  right.  At  common-law 
the  exclusive  right  to  copy  existed  in  the  author  until  he  per- 
mitted a  general  publication.  Thus,  when  a  book  was  pub- 
lished in  print,  the  owner's  common-law  right  was  lost.  At 
common-law  an  author  had  a  property  in  his  manuscript,  and 
might  have  an  action  against  any  one  who  undertook  to  pub- 
lish it  without  authority.  The  statute  created  a  new  property 
right,  giving  to  the  author,  after  publication,  the  exclusive 
right  to  multiply  copies  for  a  hmited  period.  This  statutory 
right  is  obtained  in  a  certain  way  and  by  the  performance  of 
certain  acts  which  the  statute  points  out.  That  is,  the  author 
having  complied  with  the  statute  and  given  up  his  common-law 
right  of  exclusive  duplication  prior  to  general  publication,  ob- 
tained by  the  method  pointed  out  in  the  statute  an  exclusive 
right  to  multiply  copies  and  publish  the  same  for  the  term  of 
years  named  in  the  statute.  Congress  did  not  sanction  an  ex- 
isting right;  it  created  a  new  one.  Wheaton  v.  Peters,  8  Pet. 
591 ,  661 .  Those  violating  the  statutory  rights  of  the  author  or 
proprietor  are  subject  to  certain  penalties,  and  to  the  pa3anent 
of  certain  damages,  as  is  provided  in  the  statute. 

Section  4952  of  the  Revised  Statutes  as. amended  in  1891 
(3  Comp.  Stat.,  §  3406),  provides  that  the  proprietor  of  any 
painting,  upon  compliance  with  the  provisions  of  the  copy- 
right act,  has  the  sole  right  of  publishing,  copying  and  vending 
the  same.  By  §  4953  we  find  that  this  right  exists  for  the 
period  of  twenty-eight  years  from  the  recording  of  the  title  of 
the  copyright,  with.a  right  to  certain  extensions  after  the  ex- 


CALIGA  V.  INTER  OCEAN  NEWSPAPER.         189 
215  U.  S.  Opinion  of  the  Ck>urt. 

piration  of  the  twenty-eight  years,  as  provided  in  §  4954.  In 
§  4956  we  find  that  a  copyright  is  secured  by  depositing,  on  or 
before  the  day  of  publication,  in  this  or  any  foreign  country,  in 
case  of  a  painting,  a  photograph  of  the  painting,  accompanied 
by  a  description  thereof.  There  is  absolutely  no  provision  in 
the  statutes  for  a  second  filing  of  the  photograph  or  descrip- 
tion, nor  is  there  any  provision  as  to  filing  any  amendments 
thereto,  and  as  the  matter  is  wholly  the  subject  of  statutory 
regulation,  we  are  at  a  loss  to  perceive  by  what  authority  any 
second  application  for  the  same  painting,  with  a  view  to  se- 
curing a  copyright  thereon,  can  be  sustained.  If  it  could  be, 
we  see  no  reason  why  the  proprietor  might  not  thus  extend  the 
limit  of  copyright  fixed  in  the  statute  by  an  indefinite  number 
of  new  applications  and  filings  with  the  Librarian. 

The  argument  of  the  plaintiff  in  error  is  that,  inasmuch  as 
the  statutory  copyright  is  not  complete  before  a  publication  of 
the  subject-matter  thereof,  and  no  publication  being  shown 
prior  to  the  second  application,  it  was  within  his  power,  while 
his  rights  were  thus  inchoate,  to  make  the  second  application 
for  the  copyright,  that  of  November  7,  1901.  Assuming  that 
these  premises  are  correct  and  that  publication  was  requisite 
to  complete  the  right  to  be  secured  by  the  statute,  it  by  no 
means  follows  that  a  second  copyright  is  warranted  by  the 
statute.  On  the  other  hand,  as  we  have  already  stated,  the 
statute  is  barren  of  any  provisions  to  that  end.  There  is  no 
provision,  as  there  is  in  the  patent  law,  for  an  amended  appli- 
cation, and  under  the  patent  law  it  has  been  held  that  there 
is  no  authority  for  double  patenting.  Miller  v.  Eagle  Manu- 
facturing Company,  151  U.  S.  186.  This  is  so  because  the  first 
patent  exhausts  the  statutory  right  secured  by  the  act  of  Con- 
gress. 

In  this  case  the  plaintiff  had  complied  with  all  the  terms  of 
the  statute  on  October  7, 1901.  He  then  attempts  to  take  out 
a  new  cop3aight  under  the  same  statute  on  November  5,  1901, 
for  the  same  painting,  by  depositing  a  new  description  of  the 
painting ^nd  the  same  photograph.    It  is  true  there  is  a  change 


190  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  S. 

in  the  title  of  the  painting,  and  a  slight  change  in  the  descrip- 
tion, but  these  matters  are  immaterial  and  cannot  enlarge  the 
right  of  the  plaintiff.  We  think  the  same  principle,  in  this 
aspect,  controls,  as  in  the  case  of  a  patent.  The  plaintiff  had 
already  exhausted  his  statutory  right  and  the  second  attempt 
availed  him  nothing. 

These  views  render  it  unnecessary  to  consider  whether  the 
record  shows  a  publication  of  the  painting  prior  to  Novem- 
ber 5,  1901.  For  the  reasons  stated,  we  are  of  opinion  that 
the  Circuit  Court  of  Appeals  was  right  in  holding  that  the  at- 
tempted duplication  of  the  copyright  was  void  and  of  no  effect. 

Affirmed. 


-•••- 


UNITED  STATES  i\  STEVENSON 

ERROR  TO  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR  THE 

DISTRICT  OF  MASSACHUSETTS. 

No.  292.     Argued  October  14,  15,  1909.~Decided  November  29,  1909. 

On  writ  of  error  taken  by  the  United  States  under  the  Criminal  Ap- 
peals Act  of  March  2,  1907,  c.  2564, 34  Stat.  1246,  where  the  indict- 
ment was  dismissed  as  not  sustained  by  the  statute  and  also  as  bad 
on  principles  of  general  law,  this  court  can  only  review  the  decision 
so  far  as  it  is  based  on  the  invalidity  or  construction  of  the  statute; 
it  cannot  consider  questions  of  general  law.  United  States  v.  Keitel, 
211  U.  S.  370. 

In  determining  whether  a  special  remedy  created  by  a  statute  for  en- 
forcing a  prescribed  penalty  excludes  all  other  remedies,  the  inten- 
tion of  Congress  may  be  found  in  the  history  of  the  legislation,  and, 
in  the  absence  of  clear  and  specific  language,  Congress  will  not  be 
presiuned  to  have  excluded  the  Government  from  a  weU*recognissed 
method  of  enforcing  its  statutes. 

The  fact  that  a  penal  statute  provides  for  enforcing  the  prescribed  pen- 
alty of  fine  and  forfeiture  by  civil  suit  does  not  necessarily  exclude 
enforcing  by  indictment;  and  so  held  in  regard  to  penalty  for  assist- 
ing the  immigration  of  contract  laborers  prescribed  by  §§  4  and  5  of 
the  Inmiigration  Act  of  February  20, 1907,  c.  1 134,  34  Stat.  898. 

Although  the  term  misdemeanor  has  at  times  been  used  in  the  statutes 


UNITED  STATES  v,  STEVENSON.  191 

216  n.  S.  Argument  for  the  United  States. 

of  the  United  States  without  strict  regard  to  its  common-law  mean- 
ing a  misdemeanor  at  all  times,  has  been  a  crime,  and  a  change  in  a 
statute  by  which  that  which  before  was  merely  unlawful  is  made  a 
misdemeanor  will  not  be  presumed  to  be  meaningless. 
When  the  Government  prosecutes  by  indictment  for  a  penalty  that  it 
might  sue  for  in  a  civil  action  the  person  proceeded  against  is  en- 
titled to  all  constitutional  protection  as  to  production  of  witnesses 
against  him  and  a  verdict  cannot  be  directed  against  him  as  might 
be  the  case  in  a  civil  action. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  for  the  United  States: 

On  the  construction  of  the  statute :  This  court  has  jurisdic- 
tion to  review  the  action  of  the  District  Court  in  sustaining  the 
demurrer  to  the  second  count  of  the  indictment,  which  charged 
defendants  with  assisting  contract  laborers  to  migrate  from 
Canada  into  the  United  States  in  violation  of  §  4  of  the  Immi- 
gration Act. 

The  Criminal  Appeals  Act,  in  allowing  immediate  appeal 
when  the  particular  questions  of  law  enumerated  in  the  act 
have  been  decided  against  the  Government,  intends  unques- 
tionably to  rid  the  Government  of  the  obstruction  of  criminal 
justice  through  mistakes  of  the  inferior  courts  on  such  ques- 
tions of  law.  There  is  nothing  in  this  act  which  forbids  the 
idea  that  in  such  case  as  the  present  the  Government  can  have 
a  review  by  this  court,  either  of  the  question  of  statutory  con- 
struction alone,  or  of  both  that  question  and  the  other  ques- 
tion on  which  the  lower  court  rested  its  judgment;  nor  does 
the  act  limit  this  court's  consideration  to  the  single  question 
which  gives  the  right  of  appeal. 

In  cases  where  the  question  which  gives  the  right  of  appeal 
requires  determination,  but  the  actual  decision  of  another 
point  by  the  lower  court  equally  led  to  the  judgment  below — so 
that  this  court's  decision  of  the  question  which  gives  the  right 
of  appeal  must  be  supplemented  by  decision  of  the  other 
question  by  the  lower  court  in  order  to  ascertain  what  eonse- 


192  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  216  U.  S. 

quences  upon  the  judgment  below  this  court  must  attach  to 
its  own  decision  of  the  question  which  gives  the  right  of  ap- 
peal— each  question  made  by  the  lower  court  a  basis  of  its 
judgment  is  involved  in  the  appeal.  Under  the  circumstances 
of  this  case,  the  court  ought  to  pass  upon  both  questions  actu- 
ally decided  below. 

When  this  court  finds  the  lower  court  right  upon  the  pomt 
which  made  direct  appeal  to  this  court  allowable,  it  can  at 
once  affirm  the  judgment  of  the  lower  court  without  consider- 
ing any  other  question  raised  or  decided  in  the  lower  court. 
United  States  v.  McDonald,  207  U.  S.  120;  United  States  v. 
Mason,  213  U.  S.  120.  And  when  this  court  finds  the  lower 
court  wrong  upon  the  point  which  made  appeal  allowable,  it 
can  at  once  reverse  the  judgment  of  the  lower  court  without 
considering  any  other  questions  raised  in  the  lower  court  but 
not  actually  decided  by  it.  United  States  v.  Bitty,  208  U.  S. 
393;  United  States  v.  Keitel,  211  U.  S.  370. 

Indictment  is  an  allowable  mode  of  prosecution  for  violating 
§  4  of  the  Immigration  Act  of  1907;  and  the  action  of  debt  al- 
lowed by  §  5  is  not  exclusive.  The  wording  of  §  5  as  to  action 
of  debt  is  merely  permissive  and  does  not  prohibit  indictment; 
and  no  intention  to  deny  the  Government  the  ordinary  rem- 
edies of  indictment  or  information  for  prosecution  for  a  pen- 
alty will  be  inferred.  Savings  Bank  v.  United  States,  19  Wall. 
227,  238,  239;  Crof ton's  Case,  1  Mod.  34;  United  States  v.  Stock- 
ing, 87  Fed.  Rep.  857. 

Either  indictment  or  information  will  lie  under  a  statute 
creating  an  offense  punishable  by  penalty  and  which  prescribes 
no  remedy  or  allows  some  special  remedy  not  intended  to  be 
exclusive;  because  they  are  ordinary  and  approved  methods 
of  prosecution  for  an  offense  not  above  a  misdemeanor. 

As  to  indictment:  2  Hawk.  P.  C,  ch.  25,  §  4;  1  Chitty  Grim. 
Law  (Am.  Ed.,  1847),  *162;  Harris's  Crim.  Law  (London,  101), 
p.  333;  United  States  v.  Chouteau,  102  U.  S.  603,  610. 

As  to  information:  2  Hawk.  P.  C,  ch.  26,  §§  1,  2;  1  Chitty's 
Grim.  Law,  *844,  845;  4  Bl.  Com.  309,  310;  Harris's  Grim. 


UNITED  STATES  i;.  STEVENSON.  193 

215  U.  S.  Argument  for  Defendants  in  Error. 

Law,  p.  343;  United  States  v.  Buzzo,  18  Wall.  126;  Ex  parte 
Wilson,  114  U.  S.  417,  424,  425. 

Mr.  Herbert  Parker,  Mr.  Charles  C.  Milton  and  Afr.  Henry 
H.  FvUer,  for  defendants  in  error,  submitted : 

On  the  construction  of  the  statute :  A  violation  of  §  4  of  the 
Immigration  Act  cannot  be  prosecuted  by  indictment.  While 
made  a  misdemeanor  no  penalty  is  prescribed  in  this  section, 
and  the  next  section  provides  for  recovery  of  a  money  penalty 
by  suit.  This  constitutes  a  debt  which  is  recoverable  only  by 
civil  action. 

It  is  a  universal  rule  of  statutory  interpretation  that,  where 
a  statute  prescribes  a  particular  mode  of  procedure  for  the  en- 
forcement of  a  penalty  for  an  offense  therein  created,  that 
mode  of  procedure  must  be  followed.  The  word  "may"  in  the 
statute  is  applicable  to  the  parties  who  are  permitted  to  main- 
tain the  civil  action,  any  one  of  whom  may  so  proceed.  1 
Wharton's  Grim.  Law,  §  25;  United  States  v.  Moore,  11  Fed. 
Rep.  248;  United  States  v.  Howard,  17  Fed.  Rep.  638;  United 
States  V.  Craft,  43  Fed.  Rep.  374.  * 

We  have,  therefore,  the  case  of  an  act  described  as  a  misde- 
meanor in  which  there  is  no  provision  whatsoever  for  punish- 
ment, except  by  a  penalty  to  be  recovered  by  civil  action. 
There  is  no  alternative  punishment  or  procedure  mentioned 
in  this  statute,  nor  is  there  any  general  statute  providing  for  a 
penalty  for  misdemeanor. 

It  follows,  therefore,  that  the  provisions  of  the  statute  pro- 
viding a  civil  process  to  enforce  the  penalties  for  violation  of 
§  4  are  exclusive,  and  no  indictment  will  lie.  United  States  v. 
McElroy,  115  Fed.  Rep.  252;  MoUer  v.  United  States,  57  Fed. 
Rep.  490, 495. 

It  is  obvious  from  the  history  of  §  4  that  Congress  may  have 
intended  to  change  the  character  of  the  offense  set  forth  by 
said  section  from  the  civil  to  the  criminal  side,  for  §  4  of  the 
Immigration  Act  of  March  3, 1903,  characterizes  the  offense  as 
*' unlawful,''  and,  in  the  present  section,  which  is,  in  effect,  a 
VOL.  ccxv — 13 


194  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

reSnactment  of  the  act  of  1903,  a  change  is  made  by  substi- 
tuting the  words  "a  misdemeanor"  for  the  word  "unlawful," 
and  it  is  submitted  that  the  mere  characterization  of  an  act  as 
a  misdemeanor,  without  some  accompaniment  rendering  such 
offense  punishable  by  criminal  process,  cannot  avail  to  alter 
the  technical  and  true  character  of  such  offense,  or  create  by 
implication  an  indictable  crime. 

The  nature  of  the  statute  is  essentially  penal,  and  no  loose 
construction  is  permissible.  The  forfeiture  for  the  offense  and 
the  method  by  which  such  forfeiture  may  be  secured  to  the 
United  States  are  prescribed  in  the  same  section  of  the  statute, 
and  it  is  submitted  that  the  procedure  therein  set  forth  must 
be  followed. 

Unless  a  criminal  procedure  is  provided  in  terms,  none  such 
can  be  called  to  the  assistance  of  an  intent,  however  manifest 
it  may  be  made  to  appear.  A  crime  can  be  created  only  by 
express  declaration  of  a  statute.  It  cannot  take  form,  through 
colorable  suggestions  of  intent,  nor  can  it  rest  upon  implica- 
tions, especially  where  such  are  in  conflict  with  the  express 
provision  of  the  statute. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  comes  to  this  court  under  the  provisions  of  the 
Criminal  Appeals  Act  of  March  2, 1907,  c.  2564,  34  Stat.  1246, 
providing  for  writs  of  error  on  behalf  of  the  United  States  in 
certain  criminal  cases.  The  defendants  in  error  were  indicted 
for  the  violation  of  the  Immigration  Act  of  February  20,  1907, 
c.  1134,  34  Stat.  898,  and  charged  with  unlawfully  assisting 
certain  alien  contract  laborers  to  migrate  from  Canada  to  the 
United  States,  in  violation  of  the  statute.  The  District  Court, 
upon  demurrer  to  the  indictment,  held  the  second  count  thereof 
to  be  invalid,  because  the  sole  remedy  for  a  violation  of  the  stat- 
ute was  in  a  civil  action  for  the  recovery  of  a  penalty  under  §  5 
of  the  act.  The  court  also  held  the  second  count  bad  because 
it  did  not  sufficiently  specify  the  acts  of  assistance  constituting 


UNITED  STATES  v.  STEVENSON.  1% 

215  U.  S.  Opimon  of  the  Court. 

the  alleged  offense.  Rulings  were  made  concerning  the  first 
count  not  involved  in  this  proceeding. 

From  this  statement  it  is  apparent  that  the  court  below  pro- 
ceeded upon  two  grounds,  one  of  which  concerned  the  con- 
struction of  the  statute,  the  other  of  which  decided  the  inva- 
hdity  of  the  indictment  upon  general  principles  of  criminal 
law.  We  are  therefore  met  at  the  threshold  of  the  case  with 
the  question  whether  a  writ  of  error  will  lie  in  such  a  case  as 
the  one  under  consideration,  under  the  provisions  of  the  Crim- 
inal Appeals  Act  of  1907. 

This  statute  was  before  the  court  in  the  case  of  United  States 
v.  Keitd,  211 U.  S.  370,  and  is  given  in  full  in  the  margin  of  the 
report  of  that  case.  In  that  case  it  was  held  that  the  purpose 
of  the  statute  being  to  permit  a  review  in  this  court  of  decisions 
based  upon  the  invalidity  or  construction  of  the  criminal 
statutes  of  the  United  States,  the  decisions  of  the  lower  courts 
were  intended  to  be  reviewed  only  upon  such  questions,  and 
the  whole  case  could  not  be  brought  here  for  review.  In  the 
Keitel  case  it  was  insisted  that  this  court  should  consider  the 
validity  of  the  indictment  upon  questions  of  general  law  not 
decided  in  the  court  below.  We  are  here  confronted  with  a 
case  in  which  a  decision  of  the  court  below  sustaining  a  de- 
murrer to  an  indictment  involves  not  only  the  construction  of 
a  Federal  statute,  but  another  ground  upon  which  the  decision 
was  also  rested,  which  involves  the  sufficiency  of  the  indict- 
ment on  general  principles. 

The  object  of  the  criminal  appeals  statute  was  to  permit  the 
United  States  to  have  a  review  of  questions  of  statutory  con- 
struction in  cases  where  indictments  had  been  quashed,  or  set 
aside,  or  demurrers  thereto  sustained,  with  a  view  to  prosecut- 
ing offenses  under  such  acts  when  this  court  should  be  of  opin- 
ion that  the  statute,  properly  construed,  did  in  fact  embrace 
an  indictable  offense.  Inasmuch  as  the  United  States  could 
not  bring  such  a  case  here  after  final  judgment,  it  was  intended 
to  permit  a  review  of  such  decisions  as  are  embraced  within  the 
statute,  at  the  instance  of  the  Government,  in  order  to  have  a 


196  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

final  and  determinative  construction  of  the  act  and  to  prevent 
a  miscarriage  of  justice  if  the  construction  of  the  statute  in  the 
court  below  was  unwarranted. 

In  the  Keitel  case  this  court  said  (211  U.  S.  398) : 

"That  act  [of  March  2,  1907],  we  think,  plainly  shows  that 
in  giving  to  the  United  States  the  right  to  invoke  the  authority 
of  this  court  by  direct  writ  of  error  in  the  cases  for  which  it 
provides  contemplates  vesting  this  court  with  jurisdiction  only 
to  review  the  particular  question  decided  by  the  court  below 
for  which  the  statute  provides." 

As  the  question  of  general  law  involved  in  the  decision  of  the 
court  below  is  not  within  either  of  the  classes  named  in  the 
statute,  giving  a  right  of  review  in  this  court,  we  must  decline 
to  consider  it  upon  this  writ  of  error. 

We  come  now  to  consider  the  construction  of  the  statute  and 
the  validity  of  the  indictment  in  that  respect.  Sections  4  and  5 
of  the  Immigration  Act  under  consideration  are  given  in  the 
margin.^ 

^  Sec.  4.  That  it  shall  be  a  misdemeanor  for  any  person,  company, 
partnership,  or  corporation,  in  any  manner  whatsoever,  to  prepay  the 
transportation  or  in  any  way  to  assist  or  encourage  the  importation  or 
migration  of  any  contract  laborer  or  contract  laborers  into  the  United 
States,  unless  such  contract  laborer  or  contract  laborers  are  exempted 
under  the  terms  of  the  last  two  provisos  contained  in  section  two  of  this 
act. 

Sec.  5.  That  for  every  violation  of  any  of  the  provisions  of  sec- 
tion four  of  this  act  the  persons,  partnership,  company,  or  corporation 
violating  the  same,  by  knowingly  assisting,  encouraging,  or  soliciting 
the  migration  or  importation  of  any  contract  laborer  into  the  United 
States  shall  forfeit  and  pay  for  every  such  offense  the  sum  of  one 
thousand  dollars,  which  may  be  sued  for  and  recovered  by  the  United 
States,  or  b}*^  any  person  who  shall  first  bring  his  action  therefor  in  his 
own  name  and  for  his  own  benefit,  including  any  such  alien  thus  prom- 
ised labor  or  service  of  any  kind  as  aforesaid,  as  debts  of  like  amount 
are  now  recovered  in  the  courts  of  the  United  States;  and  separate 
suits  may  be  brought  for  each  alien  thus  promised  labor  or  service  of 
any  kind  as  aforesaid.  And  it  shaU  be  the  duty  of  the  district  attorney 
of  the  proper  district  to  prosecute  every  such  suit  when  brought  by  the 
United  States. 


UNITED  STATES  v,  STEVENSON.  197 

215  U.  8.  Opinion  of  the  Court. 

A  reading  of  these  sections  makes  it  apparent  that  the  act 
makes  it  a  misdemeanor  to  assist  or  encourage  the  importation 
of  contract  laborers,  and  that  violations  thereof  may  be  pmi- 
ished  with  forfeiture  and  payment  of  $1,000  for  each  offense, 
which,  it  is  provided,  may  be  sued  for  and  recovered  by  the 
United  States,  or  by  any  person  bringing  the  action,  as  debts 
of  like  amounts  are  recovered  in  the  courts  of  the  United 
States;  and  it  is  made  the  duty  of  the  district  attorney  of  the 
proper  district  to  prosecute  every  such  suit  when  brought  by 
the  United  States. 

The  contention  of  the  defendants  in  error  is  that  the  action 
for  a  penalty  is  exclusive  of  all  other  means  of  enforcing  the 
act;  and  that  an  indictment  will  not  lie  as  for  an  alleged  offense 
within  the  terms  of  the  act.  The  general  principle  is  invoked 
that  where  a  statute  creates  a  right  and  prescribes  a  particular 
remedy  that  remedy,  and  none  other,  can  be  resorted  to.  An 
illustration  of  this  doctrine  is  found  in  Globe  Newspaper  Com- 
pany V.  Walker,  210  U.  S.  356,  in  which  it  was  held  that  in  the 
copyright  statutes  then  in  force  Congress  had  provided  a  sys- 
tem of  rights  and  remedies  complete  and  exclusive  in  their 
character.  This  was  held  because,  after  a  review  of  the  history 
of  the  legislation,  such,  it  was  concluded,  was  the  intention  of 
Congress. 

The  rule  which  excludes  other  remedies  where  a  statute  cre- 
ates a  right  and  provides  a  special  remedy  for  its  enforcement 
rests  upon  the  presumed  prohibition  of  all  other  remedies.  If 
such  prohibition  is  intended  to  reach  the  Government  in  the 
use  of  known  rights  and  remedies,  the  language  must  be  clear 
and  specific  to  that  effect.  Dollar  Savings  Bank  v.  United 
States,  19  Wall.  227, 238, 239.  In  the  present  case,  if  it  could 
be  gathered  from  the  terms  of  the  statute,  read  in  the  light  of 
the  history  of  its  enactment,  that  Congress  has  here  provided 
an  exclusive  remedy  intended  to  take  from  the  Government 
the  right  to  proceed  by  indictment,  and  leaving  to  it  only  an 
action  for  the  penalty,  civil  in  its  nature,  then  no  indictment 
will  lie,  and  the  court  below  was  correct  in  its  conclusion. 


198  OCTOBER  TERM,  1909. 

Opinion  d  the  Court.  215  U.  S. 

It  is  undoubtedly  true  that  a  penalty  of  this  character,  in 
the  absence  of  statutory  provisions  to  the  contrary,  may  be 
enforced  by  criminal  proceedings  under  an  indictment.  The 
doctrine  was  stated  as  early  as  Adams  v.  Woods,  2  Cranch,  336, 
340,  wherein  Mr.  Chief  Justice  Marshall  said : 

"  Almost  every  fine  or  forfeiture  under  a  penal  statute,  may 
be  recovered  by  an  action  of  debt  as  well  as  by  informa- 
tion. ...  In  this  particular  case,  the  statute  which 
creates  the  forfeiture  does  not  prescribe  the  mode  of  de- 
manding it;  consequently,  either  debt  or  information  would 
Ue." 

In  Lees  v.  United  States,  150  U.  S.  476,  479,  the  doctrine  was 
laid  down  that  a  penalty  may  be  recovered  by  indictment  or 
information  in  a  criminal  action,  or  by  a  civil  action  in  the 
form  of  an  action  for  debt.  It  is  to  be  noted  that  this  statute 
(§  5  of  the  Immigration  Act)  does  not  in  terms  undertake  to 
make  an  action  for  the  penalty  an  exclusive  means  of  enforc- 
ing it,  and  only  provides  that  it  may  be  thus  sued  for  and  re- 
covered. There  is  nothing  in  the  terms  of  the  act  specifically 
undertaking  to  restrict  the  Government  to  this  method  of  en- 
forcing the  law.  It  is  not  to  be  presumed,  in  the  absence  of 
language  clearly  indicating  the  contrary  intention,  that  it  was 
the  purpose  of  Congress  to  take  from  the  Government  the 
well-recognized  method  of  enforcing  such  a  statute  by  indict- 
ment and  criminal  proceedings. 

When  we  look  to  the  history  of  the  act  we  think  it  becomes 
manifest  that  Congress  did  not  so  intend.  The  Immigration 
Act  of  March  3,  1903,  c.  1012, 32  Stat.  1213,  was  amended  by 
the  act  of  February  20,  1907,  c.  1134,  34  Stat.  898,  now  under 
consideration.  The  original  act  made  it  unlawful  to  assist  or 
encourage  the  importation  or  migration  of  certain  aliens  into 
the  United  States.  The  amended  act  declares  that  such  as- 
sistance, etc.,  shall  be  a  misdemeanor.  It  is  not  to  be  pre- 
sumed that  this  change  is  meaningless,  and  that  Congress  had 
no  purpose  in  making  it.  Nor  can  we  perceive  any  purpose  in 
making  the  change  except  to  manifest  the  intention  of  Con- 


UNITED  STATES  r.  STEVENSON.  199 

215  U.  S.  Opinion  of  the  Court. 

gress  to  make  it  clear  that  the  acts  denounced  should  con- 
stitute a  crime  which  would  carry  with  it  the  right  of  the 
Government  to  prosecute  as  for  a  crime.  This  term  "  misde- 
meanor" has  been  generally  understood  to  mean  the  lower 
grade  of  criminal  offense  as  distinguished  from  a  felony. 
It  is  true  that  the  term  has  often  been  used  in  the  statutes 
of  the  United  States  without  strict  regard  to  its  common- 
law  meaning;  and  sometimes  to  describe  offenses  of  a  high 
grade,  which  have  been  declared  in  the  statutes  to  be  mis- 
demeanors. In  the  statutes  of  the  States  the  term  has  gen- 
erally been  defined  as  embracing  crimes  not  punishable  by 
death  or  imprisonment  in  the  penitentiary.  And  we  may 
note  that  the  new  penal  code  of  the  United  States  which 
will  go  mto  effect  on  January  1,  1910  (§  335,  c.  321,  35  Stat. 
1088),  provides  that  all  offenses  which  may  be  punished  by 
death,  or  imprisonment  for  a  term  exceeding  one  year,  shall 
be  termed  felonies;  all  other  offenses  shall  be  termed  mis- 
demeanors. But  at  all  times  a  misdemeanor  has  been  a 
crime.  Commonwealth  of  Kentucky  v.  Dennison,  24  How.  66, 
69. 

Congress  having  declared  the  acts  in  question  to  constitute 
a  misdemeanor,  and  having  provided  that  an  action  for  a 
penalty  may  be  prosecuted,  we  think  there  is  nothing  in  the 
terms  of  the  statute  which  will  cut  down  the  right  of  the  Gov- 
ernment to  prosecute  by  indictment  if  it  shall  choose  to  resort 
to  that  method  of  seeking  to  pimish  an  alleged  offender  against 
the  statute.  Nor  does  this  conclusion  take  away  any  of  the 
substantial  rights  of  the  citizen.  He  is  entitled  to  the  con- 
stitutional protection  which  requires  the  Government  to  pro- 
duce the  witnesses  against  him,  and  no  verdict  against  him  can 
be  directed,  as  might  be  the  case  in  a  civil  action  for  the  pen- 
alty.   Hepner  v.  United  Slates,  213  U.  S.  103. 

We  therefore  reach  the  conclusion  that  the  court  erred  in 
sustaining  the  demurrer  to  the  second  count  of  the  indictment, 
so  far  as  that  ruling  is  based  upon  the  construction  of  the 
statute  in  question.    The  judgment  is  reversed  and  the  case 


200  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

remanded  to  the  District  Court  of  the  United  States  for  the 

District  of  Massachusetts  for  further  proceedings  in  conformity 

with  this  opinion. 

Reversed. 


*•» 


UNITED  STATES  v,  STEVENSON  (NO.  2). 

ERROR  TO  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR  THE 

DISTRICT  OF  MASSACHUSETTS. 

No.  293.    Argued  October  14, 15, 1909.— Decided  November  29, 1909. 

Where  Congress  has  made  an  act  a  crime  and  indictable  it  follows  that 
if  two  or  more  conspire  to  commit  the  act  they  conspire  to  conmiit  an 
offense  against  the  United  States  within  the  meaning  of  §  5440,  Rev. 
Stat.;  and  so  held  in  regard  to  conspiring  to  sussist  immigration  of 
contract  laborers  in  violation  of  §  4  of  the  Immigration  Act  of 
February  20, 1907,  c.  1134, 34  Stat.  898. 

It  is  within  the  power  of  Congress  to  regulate  the  punishment  of  crimes 
and  it  may  make  the  punishment  for  conspiring  to  commit  a  crime 
greater  than  that  for  committing  the  crime  itself. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  for  the  United  States : 

Even  if  indictment  will  not  lie  for  a  violation  of  §  4  of  the 
Immigration  Act  of  1907,  Congress  has  made  that  offense  an 
express  misdemeanor;  and  such  statutory  classification  of  the 
crime  brings  a  conspiracy  to  commit  it  unmistakably  within 
§  5440,  Rev.  Stat.  Kentucky  v.  Dennison,  24  How.  66,  99; 
United  States  v.  Van  Schaick,  134  Fed.  Rep.  592;  Cohen  v. 
United  States,  157  Fed.  Rep.  651 ;  United  States  v.  Tsokas,  163 
Fed.  Rep.  129. 

It  is  enough  in  any  case  to  make  an  "offense  against  the 
United  States"  within  the  meaning  of  §  5440,  Rev.  Stat.,  that 
the  offense  which  the  conspiracy  contemplates  is  a  crime,  in 
the  fundamental  sense  of  a  prohibited  public  wrong,  visited 
with  personal  punishment.  Neither  the  mode  of  prosecution 
nor  the  severity  of  the  punishment  for  the  offense  is  material. 


UNITED  STATES  v,  STEVENSON  (NO.  2).        201 
215  U.  S.  Argument  for  Defendant  in  Error. 

Moore  v.  Illinois j  14  How.  13,  19;  Lees  v.  United  States,  150 
U.  S.  476;  Boyd  v.  United  States,  116  U.  S.  616;  United  States 
V.  Britton,  108  U.  S.  199,  distinguished. 

As  to  the  form  of  proceeding  by  which  a  violation  of  §  4  is 
to  be  prosecuted,  it  is  enough  to  say  that  §  5440  looks  solely 
to  the  nature  of  the  act  which  the  conspiracy  contemplates, 
and  not  to  the  nature  of  the  remedy  given  for  that  act.  It  is 
enough  that  the  object  of  the  conspiracy  is  an  act  criminal  in 
its  own  quality.    United  States  v.  Chouteau,  102  U.  S.  603. 

The  operation  of  §  5440  does  not  depend  upon  the  amount 
or  extent  of  punishment  imposed  for  the  "  offense  against  the 
United  States."  Death,  imprisonment,  fine,  forfeiture — each 
suffices,  if  the  wrongful  act  is  public  in  nature  and  therefore  a 
crime.   Chme  v.  United  States,  159  U.  S.  590. 

For  cases  of  conspiracy  under  §  5440  to  commit  offenses  un- 
der the  statutes  regulating  railroads,  where  only  a  money 
penalty  attached  to  the  offense,  see  Thomas  v.  United  States, 
156  Fed.  Rep.  897;  United  States  v.  Clark,  164  Fed.  Rep.  75; 
Evans  v.  United  States,  153  U.  S.  584,  587;  Coffin  v.  United 
States,  156  U.  S.  432,  448. 

Assisting  or  encouraging  the  importation  or  migration  of 
alien  contract  laborers  is  naturally  and  usually  a  course  of 
action  rather  than  a  single  act,  and  is  therefore  closely  analo- 
gous to  engaging  in  a  business  or  occupation,  which  may  be 
averred  generally  without  details. 

In  an  indictment  for  aiding  and  abetting  a  crime  it  is 
enough  to  say  that  the  defendants  aided  and  abetted,  without 
particularizing  the  acts  of  aiding  or  abetting.  Cases  supra 
and  United  States  v.  Simmons,  96  U.  S.  360,  363;  United  States 
V.  Mills,  7  Pet.  138, 141. 

Mr.  Herbert  Parker,  Mr.  Charles  C.  Milton  and  Mr.  Henry 
H.  FvUer,  for  defendant  in  error,  submitted : 

The  demurrer  to  the  second  count  was  properly  sustained. 
Section  4  of  the  Immigration  Act  of  1907  will  not  support  an 
indictment  for  conspiracy  under  §  5440,  Rev.  Stat. 


202  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

An  offense  against  the  United  States  which  may  be  the  basis 
for  an  indictment  for  conspiracy  under  §  5440  must  be  such  an 
offense  as  will  itself  support  an  indictment.  United  States  v. 
Britton,  108  U.  S.  199;  United  States  v.  Watson,  17  Fed.  Rep. 
145, 148;  United  States  v.  Payne,  22  Fed.  Rep.  426, 427. 

Although  §  4  has  attempted  to  define  a 'crime,  there  has 
been  provided  no  punishment  for  such  offense  within  the  lan- 
guage of  the  act  itself,  other  than  the  penalty  recoverable  by  a 
judgment  in  a  civil  suit.  As  to  the  effect  of  this,  see,  and  also 
distinguish,  United  States  v.  Tsokas,  163  Fed.  Rep.  129,  131 ; 
United  States  v.  Van  Schaick,  134  Fed.  Rep.  602;  United  States 
v.  Kellam,  7  Fed.  Rep.  843.  The  determination  of  the  case  of 
United  States  v.  Stevenson,  No.  292,  simultaneously  argued, 
must  determine  this  case  also,  and,  if  it  shall  be  held  that  §  4  of 
the  Immigration  Act  of  1907  sets  forth  no  offense  for  which  an 
indictment  will  lie,  then  the  demurrer  to  the  second  count  must 
be  sustained. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

This  case  was  argued  and  submitted  with  No.  292,  just  de- 
cided. The  indictment  herein  in  its  second  count  charges  a 
conspiracy,  under  §  5440  of  the  Revised  Statutes  of  the  United 
States,  to  commit  the  offense  of  assisting  alien  contract  la- 
borers to  migrate  into  the  United  States,  in  violation  of  the 
statutes  of  the  United  States.  Inasmuch  as  the  court  below 
had  already  reached  the  conclusion,  in  considering  the  former 
case  (No.  292,  ante),  that  assisting  alien  contract  laborers  was 
not  punishable  as  a  crime  by  indictment  under  the  Immigra- 
tion Act,  it  held  that  it  followed  that  to  conspire  to  assist  such 
migration  was  not  an  offense  against  the  United  States  within 
the  meaning  of  §  5440  of  the  Revised  Statutes  of  the  United 
States.    That  section  provides: 

"If  two  or  more  persons  conspire  either  to  commit  any  of- 
fense against  the  United  States,  or  to  defraud  the  United 
States  in  any  manner  or  for  any  purpose,  and  one  or  more  of 


EVERETT  V.  EVERETT.  203 

215  U.  S.  Syllabus. 

such  parties  do  any  act  to  effect  the  object  of  the  conspiracy, 
all  the  parties  to  such  conspiracy  shall  be  liable  to  a  penalty  of 
not  less  than  one  thousand  dollars  and  not  more  than  ten  thou- 
sand dollars,  and  to  imprisonment  not  more  than  two  years." 
Inasmuch  as  we  have  already  held  that  Congress,  in  making 
the  assistance  of  contract  laborers  into  the  United  States  a 
misdemeanor,  has  made  the  same  a  crime  indictable  as  such 
under  the  Immigration  Act  of  1907,  it  must  necessarily  follow 
that  if  two  or  more  persons,  as  is  charged  in  the  indictment 
imder  consideration,  conspire  to  assist  such  importation,  they 
do  conspire  to  commit  an  offense  against  the  United  States 
within  the  terms  of  §  5440  of  the  Revised  Statutes  of  the 
United  States.  In  this  view,  applying  the  principles  laid  down 
in  the  opinion  in  case  No.  292,  ante,  we  think  that  the  court  be- 
low erred  in  sustaining  the  demurrer  to  the  second  count  of  the 
indictment.  Nor  does  it  make  any  difference  that  Congress 
has  seen  fit  to  aflSx  a  greater  punishment  to  the  conspiracy  to 
commit  the  offense  than  is  denounced  against  the  offense  it- 
self; that  is  a  matter  to  be  determined  by  the  legislative  body 
having  power  to  regulate  the  matter.  Clune  v.  United  States, 
159  U.  S.  590. 

Judgment  reversed. 


EVERETT  V.  EVERETT. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OP  NEW  YORK. 
No.  1.    Argued  October  22,  1909.— Decided  November  29,  1909. 

Where  the  fundamental  fact  in  issue  in  a  suit  by  a  wife  for  separate 
maintenance  is  whether  there  was  a  marriage,  and  the  court  having 
jurisdiction  finds  that  the  wife's  petition  should  not  be  granted  but 
should  be  dismissed,  the  courts  of  another  State  must,  imder  the  full 
faith  and  credit  clause  of  the  Constitution,  regard  such  decree  as  de- 
termining that  there  was  no  marriage  even  though  the  husband  may 
have  asserted  other  defenses;  nor  can  the  wife,  in  a  suit  depending 
solely  on  the  issue  of  whether  there  was  a  marriage,  prove  by  oral 


204  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

testimony,  in  the  absence  of  a  bill  of  exceptions,  that  the  decree  may 
have  rested  on  any  of  the  other  defenses  asserted  by  the  husband. 
180  N.  Y.  452,  affirmed. 

This  is  a  writ  of  error  to  review  a  judgment  of  the  Supreme 
Court  of  New  York  upon  the  ground  that  the  final  order  of 
that  court,  entered  pursuant  to  the  mandate  of  the  Court  of 
Appeals  of  New  York  in  this  case,  failed  to  give  full  faith  and 
credit  to  the  judicial  proceedings  in  a  certain  action  deter- 
mined in  the  Probate  Court  of  Suffolk  County,  Massachusetts. 

The  facts  out  of  which  this  question  arose  may  be  thus 
sunmiarized : 

The  present  plaintiff  in  error,  Georgia  L.  Everett,  on  or 
about  April  1st,  1897,  brought  this  action  in  the  Supreme 
Court  of  Kings  County,  New  York,  against  the  defendant  in 
error,  Edward  Everett,  alleging  that  she  and  the  defendant 
were  lawfully  intermarried  in  that  county  before  a  Justice  of 
the  Peace,  on  the  thirtieth  day  of  October,  1884;  that  under 
the  false  pretense  that  that  marriage  would  never  be  recog- 
nized by  his  family,  and  that  a  ceremonial  marriage  would 
have  to  take  place  before  a  Minister  of  the  Gospel,  the  defend- 
ant, on  or  ftbout  December  17th,  1887,  fraudulently  instituted 
an  action  in  the  same  court  to  have  the  above  marriage  an- 
nulled; that  the  plamtiff  had  a  valid  defense  to  such  action, 
but  in  consequence  of  fraudulent  representations  to  her  by 
the  defendant  she  made  no  defense  therein,  by  reason  whereof 
a  decree  was  rendered  on  or  about  April  9th,  1888,  declaring 
that  the  alleged  marriage  between  her  and  the  defendant  was 
null  and  void ;  and  that  they  had  Uved  and  cohabited  together 
as  husband  and  wife  from  the  date  of  said  marriage  down  to 
and  including  June  1st,  1891. 

The  specific  relief  asked  in  this  case,  brought  in  1897,  was 
a  judgment  that  the  decree  of  April  9th,  1888,  in  the  case 
brought  in  1887,  be  vacated  and  set  aside,  and  that  it  be  ad- 
judged that  the  marriage  between  the  plaintiff  and  the  de- 
fendant was  binding  and  in  full  force  and  effect. 

The  defendant,  by  answer,  controverted  all  the  material 


EVERETT  V,  EVERETT.  205 

215  n.  S.  statement  of  the  Case. 

facts  alleg^  in  this  case  relating  to  the  obtaining  of  the  above 
decree  of  April  9th,  1888.  He  set  forth  various  grounds  of 
defense,  but  none  of  them  raised  any  question  of  a  Federal 
nature.  He  made,  however,  a  separate,  special  defense  herein 
based  upon  the  record  of  certain  proceedings  in  the  Probate 
Court  of  Suffolk  County,  Massachusetts. 

The  allegations  of  the  answer  as  to  those  proceedings  were 
substantially  these:  That  on  or  about  February  21st,  1895, 
the  present  plaintiff,  Georgia  L.  Everett,  brought  an  action 
against  him  in  the  Probate  Court  of  Suffolk  County  Massa- 
chusetts, claiming  to  be,  as  was  the  defendant,  a  resident  of 
Boston,  and  also  claiming  to  be  his  lawful  wife;  that  he  had 
failed,  without  just  cause,  to  furnish  suitable  support  for  her 
and  had  deserted  her;  that  she  was  living  apart  from  him  for 
justifiable  cause;  that  she  prayed  that  such  order  be  made 
for  her  support  as  the  court  deemed  expedient;  that  process 
was  duly  issued  out  of  the  said  court  and  served  on  this  de- 
fendant and  he  duly  appeared ;  that  on  or  about  March  21st, 
1895,  on  motion  of  this  defendant,  the  court  ordered  the  plain- 
I  tiff  to  file  in  that  case  full  specifications  as  to  how,  when  and 

I  where  she  became  the  lawful  wife  of  the  defendant;  that  pursu- 

ant to  that  order,  on  or  about  April  1st,  1895,  the  plaintiff 
fiJed  in  the  said  Probate  Court  her  specifications,  wherein  she 
stated  that  she  was  married  to  this  defendant  on  or  about  Oc- 
tober Slst,  1884,  in  Brooklyn,  New  York,  by  John  Courtney, 
£^.,  Justice  of  the  Peace,  and  further  that  a  legal  marriage 
I  according  to  the  laws  of  the  State  of  New  York  was  entered 

I  into  in  that  State  between  her  and  this  defendant  on  or  about 

I  April  15th,  1888,  by  mutual  consent,  consummation,  acknowl- 

edgment and  cohabitation  in  that  State,  and  that  such  consent, 
acknowledgment  and  cohabitation  continued  in  New  York,  and 
also  in  Massachusetts,  from  April  15th,  1888  to  May  30th,  1891, 
at  which  time,  she  alleged,  this  defendant  deserted  her.  She 
also  stated  in  her  petition  in  the  Probate  Court  "  that  her  mar- 
riage with  this  defendant  was  still — ^to  wit,  on  April  1, 1895 — 
of  legal  force  and  effect.    Yet  defendant  deserted  her  on  or 


206  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  8. 

about  May  30;  1891,  and  had  contributed  nothing  to  her 
support  since  that  time."  "Thereafter,"  the  answer  alleged, 
"tiiis  defendant,  according  to  the  course  and  practice  of  the 
said  court,  duly  answered  the  said  petition,  and  admitted 
that  he  and  the  said  petitioner  were  married  on  or  about  Octo- 
ber 30,  1884,  in  Brooklyn,  by  John  Courtney,  Esq.,  Justice  of 
the  Peace,  and  alleged  that  the  said  marriage  had  been  duly 
adjudged  to  be  null  and  void  by  this  court  by  its  judgment 
rendered  April  9th,  1888,  in  the  suit  brought  by  this  defend- 
ant against  the  plaintiff  herein  for  the  purpose  of  having  the 
said  marriage  annulled,  which  is  the  same  judgment  herein- 
before in  this  answer,  and  also  in  the  amended  complaint 
herein  referred  to.  In  respect  to  the  supposed  marriage  be- 
tween this  defendant  and  the  plaintiff  herein — alleged  in  the 
said  specifications  filed  by  the  plaintiff  in  her  said  suit  in 
the  Probate  Court  to  have  taken  place  on  or  about  April  15, 
1888 — this  defendant  answered  that  at  the  time  of  the  said 
marriage  performed  on  or  about  October  30,  1884,  by  John 
Courtney,  Justice  of  the  Peace,  and  both  at  the  time  of  the 
alleged  marriage  stated  in  the  specifications,  filed  by  the  said 
plaintiff,  to  have  taken  place  April  15,  1888,  and  at  all 
other  times  subsequent  to,  as  well  as  long  before  October  30, 
1884,  the  said  plaintiff  was  the  wife  of  one  William  G.  Morri- 
son, and  that  by  reason  thereof  the  said  supposed  marriages 
between  this  defendant  and  the  said  plaintiff  by  her  alleged 
were,  and  each  of  them  was,  null  and  void.  Thereafter  such 
proceedings  were  duly  had  that  the  said  cause  came  on  to  be 
heard  and  was  heard  by  the  said  Probate  Court  upon  the 
issues  raised  as  aforesaid  upon  this  defendant's  said  answer 
to  the  plaintiff's  said  petition,  and  the  said  court  found  the 
said  issues  for  this  defendant,  and  thereupon  made  its  decree 
March  25,  1897,  whereby  the  court  found  and  decided  that 
the  prayer  of  the  plaintiff's  said  petition  should  not  be  granted 
and  adjudged  that  the  said  petition  be  dismissed;  and  that  the 
said  judgment  remains  of  record,  and  in  full  force  and  effect." 
In  her  reply  the  plaintiff,  admitting  that  she  had  instituted 


EVERETT  r.  EVERETT.  207 

215  U.  S.  Statement  of  the  Case. 

in  the  Massachusetts  court  the  action  above  referred  to, 
alleged  that  her  petition  in  that  case  was  one  "for  separate 
maintenance  and  that  the  issues  involved  in  the  present  action 
were  in  nowise  considered  in  that  action  .  .  .  that  said 
petition  was  dismissed  upon  the  understanding  that  in  case  the 
relationship  of  husband  and  wife  should  be  established  be- 
tween the  plaintiff  and  the  defendant  by  said  Supreme  Court, 
and  upon  the  proceedings  pending  therein,  the  petition  for 
separate  support  was  to  be  renewed,  and  said  judgment  of 
said  Probate  Court,  the  County  of  Suffolk,  Commonwealth 
of  Massachusetts,  entered  on  or  about  the  twenty-fifth  day 
of  March,  1897,  did  not  determine  the  questions  at  issue  in 
the  present  proceedings,  and  was  entered  with  leave  to  renew 
the  said  proceedings,  as  hereinbefore  set  forth." 

There  was  a  finding  of  facts  in  the  present  case  by  the  Su- 
preme Court  of  New  York,  one  of  which  was  that  the  plain- 
tiff and  the  defendant  were  duly  married  before  the  Justice 
of  the  Peace  as  above  stated,  and  that  after  such  marriage 
they  lived  and  cohabited  together  as  husband  and  wife  up  to 
June  1st,  1891,  and  that  she  was  never  married  to  any  person 
other  than  the  present  defendant.  The  court,  by  its  final  de- 
cree, set  aside  and  vacated  the  decree  of  April  9th,  1888,  an- 
nulling the  marriage  before  the  Justice  of  the  Peace,  and 
adjudged  that  the  contract  of  marriage  thus  evidenced  .was 
in  full  force  and  effect.  But  that  decree  was  aflSrmed  by  the 
Appellate  Division.  It  is  stated  in  the  opinion  of  the  Court  of 
Appeals  that  there  were  several  trials  and  appeals  in  this  case 
to  the  Appellate  Division.  Everett  v.  Everett,  48  App.  Div. 
475;  75  App.  Div.  369;  89  App.  Div.  619. 

Finally,  the  case  was  carried  to  the  Court  of  Appeals  of 
New  York,  where  the  judgment  was  reversed  February  21st, 
1905,  180  N.  Y.  452,  but,  for  reasons  stated  in  the  opinion 
of  that  court,  the  reversal  was  with  directions  to  dismiss  her 
complaint  upon  the  merits.  That  decree  is  now  here  for  re- 
view. 

It  appears  from  its  opinion  that  the  Court  of  Appeals  of 


208  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

New  York  adjudged  the  decision  in  the  Probate  Court  of 
Massachusetts  to  be  conclusive,  as  between  the  parties,  as  to 
the  question  whether  the  plaintiif  was  the  wife  of  the  defend- 
ant, entitled  to  be  regarded  as  holding  that  relation  to  him. 
The  Court  of  Appeals  of  New  York  said  (p.  459) :  "The  Massa- 
chusetts judgment  was  based  upon  the  petition  of  the  wife 
and  it  was  founded  upon  the  allegation  that  she  was  the 
defendant's  wife ;  that  he  had  deserted  her  and  had  failed  to 
contribute  to  her  support.  These  allegations  of  fact  were 
put  in  issue  by  the  defendant  and  must  have  been  determined 
by  the  court.  An  exemplification  of  the  judgment  record  in 
the  action  which  annulled  the  marriage  was  presented  to  the 
Probate  Court  and  admitted  in  evidence.  The  court  had 
jurisdiction  of  the  parties  and  the  subject-matter  of  the  con- 
troversy, and  its  judicial  power  extended  to  every  material 
question  in  the  proceeding.  The  determination  of  the  court 
that  the  plaintiff  was  not  entitled  to  the  relief  demanded  in 
her  petition  must  be  deemed  to  have  included  the  question 
as  to  the  validity  of  her  marriage.  In  other  words,  the  court 
must  have  determined  the  question  whether  the  petitioner 
was  in  fact  the  defendant's  wife,  and  this  involved  an  inquiry 
with  respect  to  the  question  whether  at  the  time  of  her  mar- 
riage before  the  Justice  of  the  Peace  at  Brooklyn  she  had  an- 
other husband  living.  There  was  evidence  before  the  court 
on  that  question,  since  the  record  of  the  judgment  annulling 
the  marriage  in  this  State  was  before  it.  That  judgment  of  a 
sister  State  was  entitled  in  the  present  action  to  full  faith  and 
credit  under  the  Constitution  of  the  United  States,  any  stat- 
ute, rule  or  procedure  or  even  any  constitutional  provision  in 
any  State,  to  the  contrary  notwithstanding.  The  provision  of 
the  Federal  Constitution  with  respect  to  the  force  and  effect 
to  be  given  to  the  judgments  of  other  States,  and  the  act  of 
Congress  passed  in  pursuance  thereof,  is  the  supreme  law  of 
the  land,  and  any  statute  or  rule  of  practice  in  this  State  that 
would  tend  to  detract  or  take  from  such  a  judgment  the  force 
and  effect  that  it  is  entitled  to  under  the  Federal  Constitution 


EVERETT  V,  EVERETT.  209 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

and  in  the  State  where  rendered  must  be  deemed  to  be  inop- 
erative. So  we  think  that  that  judgment  was  conclusive 
upon  the  parties  to  this  action  with  respect  to  all  the  ques- 
tions which  were  involved  in  the  proceedings  and  decided  by 
the  court,  and  clearly  one  of  those  questions  was  the  status 
of  the  present  plaintiff.  She  alleged  that  she  was  the  defend- 
ant's wife,  and  this  allegation  must  be  deemed  to  have  been 
negatived  by  the  decision  in  the  proceeding." 

The  court,  in  addition,  considered  and  disposed  of  some 
questions  of  a  non-Federal  nature  in  respect  to  which  the 
trial  court  was  held  to  have  erred.  But  it  thus  concluded  its 
opinion  (p.  464):  "There  are  many  other  questions  in  this 
case  which  have  been  discussed  at  length  upon  the  argument 
and  are  to  be  found  in  the  briefs  of  the  respective  counsel, 
but  it  is  unnecessary  to  consider  them.  We  think  that  the 
judgment  must  be  reversed,  and  as  there  appears  to  be  at 
least  one  conclusive  obstacle  to  the  plaintiff's  success,  a  new 
trial  would  be  useless,  and  so  the  complaint  should  be  dis- 
missed upon  the  merits."  The  one  conclusive  obstacle  thus 
found  to  be  in  the  plaintiff's  way  was  the  judgment  of  the 
Massachusetts  court  in  the  action  brought  by  the  plaintiff  in 
error  against  the  defendant  in  error. 

Mr.  Frank  H.  Stewart,  for  plaintiff  in  error,  submitted : 
The  dismissal  of  the  complaint  by  the  state  court  was  upon 
the  ground  that  the  action  of  the  probate  court  in  Massachu- 
setts was  a  "conclusive  obstacle"  to  the  plaintiff's  success. 
This  involved  the  determination  of  the  effect  in  Massachu- 
setts of  the  action  of  said  probate  court,  in  accordance  with 
§  1,  Art.  IV,  of  the  Constitution  and  of  §  905,  Rev.  Stat.  See 
Mills  V.  Dvryee,  7  Cranch,  481;  McElmoyle  v.  Cohen,  13  Pet. 
312,  326;  Crapo  v.  Kdly,  16  Wall.  610,  619. 

The  determination  by  the  courts  of  one  State  of  the  effect  to 
be  given  to  the  judicial  proceedings  of  a  sister  State  is  open  to 
review  by  this  court  upon  writ  of  error.  Huntington  v.  AttrUl, 
146  U.  S.  657. 

VOL.  ccxv — 14 


210  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 

Particularly  when  the  highest  court  of  a  State  has  decided 
against  the  effect  which  it  was  claimed  proceedings  in  another 
State  had  by  the  law  and  usage  of  that  State.  Green  v.  Van 
Buskirk,  7  Wall.  145.  See  also  Andrews  v.  Andrews,  188  U.  S. 
28;  Crapo  v.  KeUy,  16  Wall.  621;  GL  West.  Tel.  Co.  v.  Purdy, 
162  U.  S.  335;  Huntington  v.  AttriU,  146  U.  S.  684;  Harding  v. 
Harding,  198  U.  S.  325. 

That  in  the  present  case  the  New  York  court  has  given  too 
great  effect  to  the  Massachusetts  proceedings,  instead  of  too 
little,  does  not  render  its  decision  any  the  less  reviewable  by 
this  court.  Board  of  Pub.  Works  v.  Columbia  College,  17  Wall. 
521,  529;  Wood  v.  Watkinson,  17  Connecticut,  500,  505;  Suy- 
dam  V.  Barber  et  al.,  18  N.  Y.  468,  472;  Warrington  v.  Bail,  90 
Fed.  Rep.  464. 

The  state  court  erred  in  determining  that  the  effect  of  the 
judicial  proceedings  in  the  probate  court  of  Massachusetts  was 
to  render  res  jvdicaia  the  issue  raised  by  the  complainant  in 
this  case. 

The  issue  in  this  case  is  one  which  the  probate  court  of 
Massachusetts  did  not  and  could  not  pass  upon  by  actual  de- 
cree, or  affect  by  the  legislative  part  of  that  decree.  See 
Statutes  of  Massachusetts,  chap.  153,  §  33. 

The  issue  in  this  case  was  not  rendered  res  judicata  by  the 
judicial  proceedings  in  Massachusetts. 

It  was  not  a  fact  which  was,  or  could  have  been,  litigated  or 
decided  in  Massachusetts.    See  Kerr  v.  Kerr,  41  N.  Y.  272. 

The  issue  of  this  case  was  not  a  matter  necessary  to  be  de- 
termined by  the  Massachusetts  probate  court  in  the  action 
taken  by  it. 

The  pc^tition  was  simply  dismissed.  The  ground  for  dis- 
missal may  have  been  any  one  of  the  grounds  set  up.  There  is 
nothing  in  the  record  to  show  that  thfe  Massachusetts  court 
did  not  reach  its  result  on  some  ground  other  than  that  which, 
it  is  contended,  renders  that  result  res  judicata. 

It  cannot  therefore  be  held,  upon  the  face  of  the  record,  that 
there  was  identity  of  issues  and  resulting  res  judicata.    Vrrdauf 


EVERETT  V.  EVERETT.  211 

215  U.  S.  Argument  for  Plaintiff  in  Error. 

V,  Undauf,  117  lUinois,  584;  and  see  Harding  v.  Harding,  198 
U.  S.  337,  338. 

It  is  clearly  the  law  of  Massachusetts;  of  New  York,  and  the 
general  law  that,  when  a  general  result  may  have  been  reached 
by  the  determmation  of  any  undeterminate  one  of  several 
facts,  no  particular  fact  is  conclusively  determined.  Stannard 
V.  HubbeU,  123  N.  Y.  520;  House  v.  Lochwood,  137  N.  Y.  259; 
Stokes  V.  Foote,  172  N.  Y.  327,  342;  Burlen  v.  Shannon,  99 
Massachusetts,  200;  Ltea  v.  Lea,  99  Massachusetts,  493;  Foye 
v.  Patch,  132  Massachusetts,  105,  111;  Stone  v.  Addy,  168 
Massachusetts,  26. 

The  issue  of  this  case  was  not  in  fact  a  matter  determined  by 
the  Massachusetts  probate  court. 

The  burden  of  proof  was  upon  the  husband,  for  it  is  the  de- 
fendant who  sets  up  the  estoppel.  Vaughn  v.  O'Brien,  57 
Barb.  491,  495;  Foye  v.  Paich,  132  Massachusetts,  105,  111; 
Cromwell  v.  Sack,  94  U.  S.  351. 

The  issue  in  this  case  was  not  rendered  res  judicata  because 
the  alleged  decree  in  Massachusetts  did  not  import  a  decree  on 
the  merits. 

The  entry  in  the  Massachusetts  probate  court,  "Petition 
Dismissed  "  does  not  necessarily  import  a  decree  on  the  merits. 
And  a  consideration  of  the  extrinsic  evidence  shows  that  there 
was  a  voluntary  dismissal  on  the  part  of  the  wife  at  a  time 
when  she  had  a  perfect  right  to  dismiss  her  petition,  which  dis- 
missal was  acquiesced  in  by  the  husband  and  permitted  by  the 
court.  The  mere  fact  that  the  court  did  not  see  fit  to  grant  her 
request  that  the  decree  should  contain  the  customary  technical 
words  "without  prejudice"  is  not  conclusive  upon  her  rights. 
Lanphier  v.  Desmond,  187  Illinois,  382;  Haldeman  v.  United 
Stales,  91  U.  S.  584. 

And,  since  the  decree  purported  only  to  deny  to  the  wife 
affirmative  relief,  it  did  not  bar  a  new  application  on  her  part 
for  separate  maintenance.  Budcman  v.  Phelps,  6  Massachu- 
setts, 448;  Pettee  v.  Wilmarth,  5  Allen,  144. 

For  the  Court  of  Appeals  to  hold  the  contrary  was  to  deny 


212  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

to  the  Massachusetts  decree  the  effect  which  the  wife  claimed 
it  had  by  law  and  usage  in  Massachusetts. 

The  issue  in  the  present  case  arises  on  a  different  state  of 
facts  from  the  facts  upon  which  the  Massachusetts  proceedings 
were  predicated. 

Mr.  George  Zabriskie  for  defendant  in  error: 

In  a  suit  of  this  character  it  is  necessary  in  New  York,  as 
well  as  in  the  Federal  courts,  and  elsewhere  to  allege  and  prove 
two  distinct  things:  first,  that  the  party  complaining  had  a 
good  defense  on  the  merits  to  the  claim  upon  which  the  judg- 
ment impeached  was  rendered;  and  second,  that  he  was  pre- 
vented from  availing  himself  of  that  defense  by  the  fraud  of 
the  other  party.  2  Story,  Equity,  §  885a;  Blank  v.  Blank,  107 
N.  Y.  91;  Whittlesey  v.  Delaney,  73  N.  Y.  571;  Kimberly  v. 
Arms,  40  Fed.  Rep.  548;  White  v.  Crow,  110  U.  S.  183;  AbU- 
man  v.  Roth,  12  Wisconsin,  81 ;  Dobbs  v.  St.  Joseph  Fire  Ins. 
Co.,  72  Missouri,  189;  Williams  v.  NoUm,  58  Texas,  708. 

The  judgment  of  the  Court  of  Appeals  proceeded  upon  two 
grounds,  of  which  at  least  one  presents  no  Federal  question. 

The  judgment  of  the  Court  of  Appeals  rests  quite  as  much 
upon  their  determination  of  the  issue  of  fraud,  which  involves 
no  Federal  question. 

In  such  a  case  this  court  will  not  assume  jurisdiction.  Allen 
V.  Arguimbau,  198  U.  S.  149;  Dibble  v.  BeUingham  Bay  Land 
Co.,  163  U.  S.  63;  Johnson  v.  Risk,  137  U.  S.  300;  Klir^er  v. 
Missouri,  13  Wall.  257. 

No  Federal  question  is  involved. 

A  right,  privilege  or  immunity  claimed  under  the  Consti- 
tution must,  under  clause  3  of  §  709  of  the  Revised  Statutes 
of  the  United  States,  be  claimed  in  the  court  below  by  the 
party  seeking  the  advantage  of  it.  Johnson  v.  N.  Y.  Life  Ins. 
Co.,  187  U.  S.  491,  495;  Eastern  Building  &  Loan  Assn.  v.  Wil- 
liamson, 189  U.  S.  122;  Glenn  v.  Garth,  147  U.  S.  360;  Lloyd  v. 
Matthews,  155  U.  S.  222. 

Where  the  plaintiff  in  error  claims  merely  that  the  state 


EVERETT  V.  EVERETT.  213 

215  U.  S.  Argument  for  Defendant  in  Error. 

court  erroneously  construed  the  judgment  of  a  court  of  another 
State,  without  denjdng  that  the  state  court  gave  to  the  judg- 
ment the  effect  which  such  construction  warrants,  there  is  no 
question  of  faith  and  credit  involved  which  this  court  has 
jurisdiction  to  review.  AUen  v.  AUeghany  Company,  192  U.  S. 
458;  Finney  v.  Guy,  189  U.  S.  335;  Johnson  v.  N,  F.  Life  Ins. 
Co.,  187  U.  S.  491;  Banholzer  v.  N.  Y.  Life  Ins.  Co.,  178  U.  S. 
402;  Lloyd  v.  MaUhews,  155  U.  S.  222;  Glenn  v.  Garth,  147  U.  S. 
360. 

If  upon  any  groimd  this  court  have  jurisdiction,  the  judg- 
ment of  the  state  court  upon  the  plea  of  res  jvdicaia  is  right. 

A  final  decree  of  a  court  of  competent  jurisdiction,  upon  the 
merits  of  the  cause,  is  conclusive  between  the  parties  upon  the 
material  matters  thereby  necessarily  determined.  Embury  v. 
Connor,  3  N.  Y.  511,  552;  Dobson  v.  Pearce,  12  N.  Y.  156;  Prey 
V.  Hegeman,  98  N.  Y.  351 ;  Griffin  v.  Long  Island  R.  R.  Co.,  102 
N.  Y.  449. 

Such  being  the  ordinary  rule  of  law  there  is  no  evidence  in 
the  record  to  indicate  that  in  Massachusetts  the  decree  of  the 
probate  court  would  be  accorded  any  other  or  different  faith 
or  credit. 

In  ascertaining  what  credit  is  given  to  judicial  proceedings 
in  the  State  where  they  took  place,  this  court  is  limited  to  the 
evidence  on  that  subject  before  the  court  whose  judgment  is 
under  review.    TUt  v.  Kelsey,  207  U.  S.  43, 57. 

The  conclusiveness  of  the  decree  is  not  impaired  by  the  fact 
that  the  cause  of  action  in  the  suit  in  which  the  judgment  was 
rendered  is  different  from  the  cause  of  action  in  the  suit  at  bar. 
Doty  V.  Brown,  4  N.  Y.  71;  Lythgoe  v.  Lythgoe,  75  Hun,  147; 
S.C.,  145N.Y.641. 

In  such  instances  the  judgment  is  conclusive  as  to  those 
matters  in  issue  upon  the  determination  of  which  the  finding  or 
verdict  was  actually  rendered.  Cromwell  v.  County  of  Sac,  94 
U.  S.  351, 352,  353;  Southern  Pacific  R.  R.  Co.  v.  United  States, 
168  U.  S.  1,  48,  49;  BeU  v.  MerrifiM,  109  N.  Y.  202,  211. 

The  form  of  the  proceeding  does  not  effect  the  conclusive- 


214  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

ness  of  the  decree.  The  efficacy  of  the  judicial  determination 
attaches  no  less  to  summary,  special  or  statutory  proceedings, 
than  to  actions.  Cuirass  v.  Gibbons,  130  N.  Y.  447;  Reich  v. 
Cochran,  151  N.  Y.  122;  Smith  v.  Zdinski,  94  N.  Y.  519; 
Matter  of  Livingston,  34  N.  Y.  555. 

The  sufficiency  of  the  proof  upon  which  the  court  acted  is 
not  open  to  consideration  where  the  judgment  is  pleaded  as  a 
bar  or  is  relied  on  as  evidence;  otherwise  the  judgment  would 
not  be  conclusive,  and  there  could  be  no  such  thing  as  res 
judicata.  Crescent  Live  Stock  Co.  v.  Butchers'  Union,  120  U.  S. 
141,  159;  DeposU  Bank  v.  Frankfort,  191  U.  S.  449,  510; 
Grignon's  Lessee  v.  Astor,  2  How.  319,  339;  Comstock  v.  Craw- 
ford, 3  Wall.  396,  406. 

Mr.  Justice  Harlan,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

We  have  no  concern  about  the  disposition  made  by  the 
state  court  of  questions  of  mere  local  law,  and  have  only  to 
inquire  whether,  as  required  by  the  Constitution  of  the  United 
States,  it  gave  full  faith  and  credit  to  the  proceedings  had  in 
the  Probate  Court  in  Massachusetts.  Const.,  Art.  IV,  §  1.  K 
it  did,  the  judgment  must  be  affirmed;  otherwise,  reversed. 
That  the  proceedings  in  the  latter  court  were  judicial  in  their 
nature,  and  that  the  New  York  court  intended  to  give  them 
full  faith  and  credit,  cannot  be  doubted.  The  Probate  Court 
is  a  court  of  record,  established  by  the  General  Court  of  Massa- 
chusetts under  the  authority  of  the  constitution  of  that  Com- 
monwealth. Const.  Mass.  1822;  Pub.  Stat.  Mass.  1882,  p. 
871,  c.  156.  It  has  jurisdiction  when  a  wife  for  justifiable 
cause  is  actually  living  apart  from  her  husband  to  make  such 
order  as  it  deems  expedient  concerning  her  support.  Ibid. 
And  when  it  has  jurisdiction  of  the  parties  and  subject- 
matter  its  decree,  until  reversed  or  modified,  is  as  conclusive 
in  Massachusetts  as  the  judgments  of  other  courts  there. 
Watts  V.  Waits,  160  Massachusetts,  464;  Langhton  v.  Atkins, 
1  Pick.  535;  Dublin  v.  Chaboum,  16  Massachusetts,  433. 


EVERETT  v.  EVERETT.  215 

215  U.  S.  Opinion  of  the  Court. 

In  the  suit  in  Massachusetts  the  fundamental  fact  was  put 
in  issue  as  to  whether  the  plaintiff  was  the  wife  of  the  defend- 
ant and  entitled,  as  such,  to  sue  for  support  while  living  apart 
from  her  alleged  husband.  The  New  York  court  adjudged 
that,  as  between  the  parties,  and,  so  far  as  the  question  be- 
fore us  is  concerned,  that  fact  had  been  determined  by  the 
Massachusetts  court  adversely  to  the  plaintiff;  for,  the  latter 
court  ruled,  after  hearing  the  parties,  that  the  relief  asked 
from  it  should  not  be  granted  and  dismissed  the  plaintiff's 
petition.    So  reads  the  record  of  the  Massachusetts  court. 

It  is  said,  however,  that  for  aught  that  appears  from  the 
record  of  the  Probate  Court,  as  produced  herein,  that  court 
may  have  declined  to  grant  the  relief  asked  by  the  alleged 
wife  without  considering  at  all  the  fact  of  her  marriage,  but 
only  on  the  ground  that  she  was  hving  apart  from  the  defend- 
ant without  justifiable  cause.  But  the  answer  to  this  con- 
tention is  that  the  question  whether  the  plaintiff  was  the 
lawful  wife  of  the  defendant,  as  well  as  the  question  whether 
she  was  entitled  to  separate  maintenance  while  living  apart 
from  her  alleged  husband,  were  in  issue  in  the  Probate  Court, 
and  if,  in  order  to  prove  that  the  court  below  gave  undue 
faith  and  credit  to  the  Massachusetts  judgment,  the  plaintiff 
was  entitled  to  show  by  oral  testimony  that  there  was  really 
no  dispute  in  the  Probate  Court  as  to  the  fact  of  her  being  the 
wife  of  the  defendant,  and  that  the  only  actual  dispute  at  the 
hearing  was  whether  she  had  justifiable  cause  for  living  apart 
from  him,  no  such  proof  appears  to  have  been  made  by  her. 
No  bill  of  exceptions  as  to  the  evidence  in  the  Probate  Court 
seems  to  have  been  taken,  and  we  have  before  us  only  a  record 
showing  that  the  plaintiff,  claiming  to  be  the  wife  of  the  de- 
fendant herein,  sued  for  separate  maintenance  and  support, 
alleging  that  she  was  living  apart  from  him  for  justifiable 
cause,  and  that  the  relief  asked  was  denied  and  her  petition 
dismissed  without  any  statement  of  the  specific  grounds  on 
which  the  court  proceeded  and  without  any  qualifying  words 
indicating  that  the  decree  was  otherwise  than  upon  the  merits 


216  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

as  to  the  issues  made.  We  concur  with  the  Court  of  Appeals 
<rf  New  York  in  holding  that  as  the  Probate  Court  had  juris- 
diction of  the  parties  and  the  subject-matter,  its  judgment, 
rendered  after  hearing,  that  the  plaintiff  was  not  entitled  to 
the  relief  demanded  by  her  and  that  her  petition  be  dismissed, 
it  must  be  taken,  upon  the  record  of  this  case,  that  the  latter 
court  determined  against  the  plaintiff  the  fact  of  her  being 
the  wife  of  the  defendant  at  the  time  she  sought  separate 
maintenance  and  support. 

It  is  doubtful  whether  the  plaintiff,  in  her  pleadings  or 
otherwise,  sufficiently  asserted  any  right  belonging  to  her 
under  the  Constitution  of  the  United  States.  But  if  it  were 
assumed  that  she  did,  the  result,  even  upon  that  hypothesis, 
is  that,  upon  the  present  showing  by  the  plaintiff,  there  is  no 
substantial  ground  to  contend  that  the  court  below  did  not 
give  such  faith  and  credit  to  the  judgment  of  the  Probate 
Court  of  Massachusetts  as  were  required  by  the  Constitution, 
and,  therefore,  this  court  has  no  authority  to  review  the  final 
judgment  of  the  New  York  court.    The  writ  of  error  must  be 

dismissed. 

//  is  so  ordered. 


BALTIMORE   AND   OHIO    RAILROAD   COMPANY   v. 
INTERSTATE  COMMERCE  COMMISSION. 

ON   CERTIFICATE   FROM   THE   CIRCUFF   COURT   OF  THE    UNrTED 
STATES  FOR  THE   DISTRICT   OF  MARYL.^J^D. 

No.  339.    Argued  October  15, 18,  1909.— Decided  December  6, 1909. 

Only  distinct  points  of  law  that  can  be  distinctly  answered  without 
regard  to  other  issues  can  be  certified  to  this  court  on  division  of 
opinion:  the  whole  case  cannot  be  certified  even  when  its  decision 
turns  upon  matter  of  law  only. 

Appellate  jurisdiction  implies  the  determination  of  the  case  by  an 
inferior  court,  and  the  transfer  of  the  case  to  the  appellate  court 
without  such  determination  amounts  to  giving  the  appellate  court 
original  jurisdiction. 


B.  &  O.  R.  R.  V.  INTERSTATE  COMM.  COMM.    217 
215  U.  S.  Statement  of  the  Case. 

* 

Congress  cannot  extend  the  original  jurisdiction  of  this  court  beyond 
that  prescribed  by  the  Constitution;  and  an  act  providing  for 
certifying  questions  of  law  will  not  be  construed  as  permitting 
certification  of  the  entire  case  before  any  judgment  has  been  ren- 
dered below. 

Under  §  1  of  the  expediting  act  of  February  11,  1903,  c.  544,  32  Stat. 
823,  the  case,  although  turning  only  on  a  point  of  law  cannot  be 
certified  to  this  court,  in  absence  of  any  judgment,  opinion,  de- 
cision, or  order  determinative  of  the  case  below. 

This  was  a  bill  in  equity  filed  by  the  Baltimore  and  Ohio 
Railroad  Company  in  the  Circuit  Court  of  the  United  States 
for  the  District  of  Maryland  against  the  Interstate  Com- 
merce Commission,  July  20,  1908,  which  prayed  for  a  pre- 
liminary injunction  and  a  final  decree  enjoining,  annulUng 
and  suspending  a  certain  order  of  the  commission  served 
June  24,  1908,  in  a  proceeding  before  the  commission  entitled 
"Rail  and  River  Coal  Company  vs,  Baltimore  and  Ohio  Rail- 
road Company." 

On  July  27,  1908,  the  Attorney-General,  in  compliance 
with  §  16  of  the  act  to  regulate  commerce,  as  amended  by 
the  act  of  June  29,  1906,  filed  in  the  court  the  certificate  of 
general  public  importance  under  the  expedition  act  of  Fel> 
ruary  11,  1903.  In  accordance  with  the  provisions  of  the 
act  of  February  11,  1903,  the  two  Circuit  Judges,  by  order 
filed  August  26,  1908,  designated  the  Honorable  Thomas  J. 
Morris,  District  Judge  for  the  District  of  Maryland,  to  sit 
with  them  on  the  hearing  and  disposition  of  the  case. 

The  application  for  the  preliminary  injunction  was  set  for 
hearing  September  22,  1908.  Defendant's  answer  was  filed 
September  19,  1908.  By  order  entered  September  23,  1908, 
the  application  for  the  preliminary  injunction  was  denied. 

Replication  was  filed  and  testimony  taken,  and,  there  be- 
ing no  substantial  dispute  as  to  the  facts,  Mr.  Arthur  Hale, 
complainant's  general  superintendent  of  transportation,  and 
also  chairman  of  the  car  efficiency  committee  of  the  Americar 
Railway  Association,  was  able  to  testify  as  to  all  matters 


218  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

that  counsel  deemed  necessary  to  bring  to  the  court's  atten- 
tion, and  was  the  only  witness. 

December  14,  1908,  the  cause  came  on  for  final  hearing, 
and  was  argued  before  the  two  Circuit  Judges  and  the  Dis- 
trict Judge  designated  by  them.  No  final  decree  or  judg- 
ment was  entered,  but  the  presiding  judge  entered  the  fol- 
lowing order: 

"This  cause  came  on  this  day  to  be  further  heard,  and  was 
argued  by  counsel,  and  the  court  having  fully  considered 
the  bill,  answer,  deposition  and  other  papers  filed  herein, 
the  judges  sitting  finding  themselves  divided  in  opinion  as 
to  the  decree  that  should  be  entered  herein, 

"It  is  now  ordered,  that  in  accordance  with  the  act  of 
Congress  applicable  hereto,  that  this  case  be  certified  for 
review  to  the  Supreme  Court  of  the  United  States. 

"December  14,  1908.'' 

The  cause  was  docketed  in  this  court  and  the  transcript 
of  record  filed  January  25,  1909,  as  "On  a  certificate  from 
the  Circuit  Court  of  the  United  States  for  the  District  of  Mary- 
land." 

The  act  of  Congress  of  February  11,  1903,  c.  544,  32  Stat. 
823,  contains  two  sections,  as  follows: 

"(1)  That  in  any  suit  in  equity  pending  or  hereafter 
brought  in  any  Circuit  Court  of  the  United  States  under  the 
act  entitled  'An  act  to  protect  trade  and  commerce  against 
unlawful  restraints  and  monopolies,'  approved  July  second, 
eighteen  hundred  and  ninety,  'An  act  to  regulate  commerce/ 
approved  February  fourth,  eighteen  hundred  and  eighty- 
seven,  or  any  other  acts  having  a  like  purpose  that  hereafter 
may  be  enacted  wherein  the  United  States  is  complainant, 
the  Attorney-General  may  file  with  the  clerk  of  such  court 
a  certificate  that,  in  his  opinion,  the  case  is  of  general  public 
importance,  a  copy  of  which  shall  be  immediately  furnished 
by  such  clerk  to  each  of  the  circuit  judges  of  the  circuit  in 
which  the  case  is  pending.  Thereupon  such  case  shall  be 
given  precedence  over  others  and  in  every  way  expedited, 


B.  A  O.  R.  R.  V.  INTERSTATE  COMM,  COMM.    219 
215  U.  S.  Statement  of  the  Case. 

and  be  assigned  for  hearing  at  the  eariiest  practicable  day, 
before  not  less  than  three  of  the  circuit  judges  of  said  cir- 
cuit, if  there  be  three  or  more;  and  if  there  be  not  more  than 
two  circuit  judges,  then  before  them  and  such  district  judge 
as  they  may  select.  In  the  event  the  judges  sitting  in  such 
case  shall  be  divided  in  opinion,  the  case  shall  be  certified 
to  the  Supreme  Court  for  review  in  like  manner  as  if  taken 
there  by  appeal  as  hereinafter  provided. 

"Sec.  2.  That  in  every  suit  in  equity  pending  or  hereafter 
brought  in  any  Circuit  Court  of  the  United  States  under  any 
of  said  acts,  wherein  the  United  States  is  complainant,  in- 
cluding cases  submitted  but  not  yet  decided,  an  appeal  from 
the  final  decree  of  the  Circuit  Court  will  lie  only  to  the  Su- 
preme Court  and  must  be  taken  within  sixty  days  from  the 
entry  thereof:  Provided,  That  in  any  case  where  an  appeal 
may  have  been  taken  from  the  final  decree  of  the  Circuit 
Court  to  the  Circuit  Court  of  Appeals  before  this  act  takes 
effect,  the  case  shall  proceed  to  a  final  decree  therein,  and  an 
appc^  may  be  taken  from  such  decree  to  the  Supreme  Court 
in  the  manner  now  provided  by  law." 

Section  16  of  the  Hepburn  Act,  so  called,  of  June  29,  1906, 
c.  3591,  34  Stat.  584,  592,  provides: 

"The  venue  of  suits  brought  in  any  of  the  Circuit  Courts 
of  the  United  States  against  the  commission  to  enjoin,  set 
aside,  annul,  or  suspend  any  order  or  requirement  of  the 
commission  shall  be  in  the  district  where  the  carrier  against 
whom  such  order  or  requirement  may  have  been  made  has 
its  principal  operating  ofiice,  and  may  be  brought  at  any 
time  after  such  order  is  promulgated. 

"The  provisions  of  'An  act  to  expedite  the  hearing  and 
determination  of  suits  in  equity,  and  so  forth,'  approved 
February  eleventh,  nineteen  hundred  and  three,  shall  be, 
and  are  hereby,  made  applicable  to  all  such  suits,  including 
the  hearing  on  an  application  for  a  preliminary  injunction, 
and  are  also  made  applicable  to  any  proceeding  in  equity  to 


220  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  XT.  8. 

enforce  any  order  or  requirement  of  the  commission,  or  any 
of  the  provisions  of  the  act  to  regulate  commerce,  approved 
February  fourth,  eighteen  hundred  and  eighty-«even,  and 
all  acts  amendatory  thereof  or  supplemental  thereto.  It  shall 
be  the  duty  of  the  Attorney-General  in  every  such  case  to  file 
the  certificate  provided  for  in  said  expediting  act  of  Febru- 
ary eleventh,  nineteen  hundred  and  three,  as  necessary  to 
the  application  of  the  provisions  thereof,  and  upon  appeal 
as  therein  authorized  to  the  Supreme  Court  of  the  Umted 
States,  the  case  shall  have  in  such  court  priority  in  hearing 
and  determination  over  all  other  causes  except  criminal 
causes.  ...  An  appeal  may  be  taken  from  any  inter- 
locutory order  or  decree  granting  or  continuing  an  injunction 
in  any  suit,  but  shall  lie  only  to  the  Supreme  Court  of  the 
United  States :  Provided  further,  That  the  appeal  must  be 
taken  within  thirty  dajrs  from  the  entry  of  such  order  or 
decree  and  it  shaU  take  precedence  in  the  appellate  court 
over  all  other  causes,  except  causes  of  like  character  and  crim- 
inal causes." 

Afr.  W.  Irvine  Cross  and  Mr.  Hugh  L.  Bond,  Jr.,  with 
whom  Mr.  W.  Ainsworth  Parker  was  on  the  brief,  for  the 
Baltimore  and  Ohio  Railroad  Company. 

Mr.  Wade  H.  EUis,  Assistant  to  the  Attorney-General,  with 
whom  Afr.  Luther  M.  Walter  and  Afr.  Orla  E.  Harrison, 
Special  Assistants  to  the  Attorney-General,  were  on  the  brief, 
for  the  Interstate  Commerce  Commission. 

Mr.  Chief  Justice  Fuller,  after  making  the  foregoing 


statement,  delivered  the  opinion  of  the  court. 

By  the  Judiciary  Act  of  March  3,  1891,  a  review  by  certifi- 
cate is  limited  to  the  certificate  or  its  equivalent  by  the  Cir- 
cuit Courts,  made  after  final  judgment,  of  the  question,  when 
raised,  of  their  jurisdiction  as  courts  of  the  United  States, 


B.  &  O.  R.  R.  t>.  INTERSTATE  COMM.  COMM.    221 
21£  U.  S.  Opiztion  of  the  Court. 

and  to  the  certificate  by  the  Circuit  Courts  of  Appeal  of 
questions  of  law  in  relation  to  which  the  advice  of  this  court 
is  sought  as  therein  provided,  which  certificates  are  governed 
by  the  same  rules  as  were  formerly  appUed  to  certificates  of 
division.  United  States  v.  Rider,  163  U.  S.  132;  The  Paquete 
Habana,  175  U.  S.  677,  684;  Chicago,  Burlington  &  Quincy 
Railway  Company  v.  Williams,  205  U.  S.  444.  And  it  has 
been  established  by  repeated  decisions  that  questions  certi- 
fied to  this  court  upon  a  division  of  opinion  must  be  distinct 
points  of  law  clearly  stated  so  that  they  can  be  distinctly 
answered  without  regard  to  other  issues  of  law  or  of  fact; 
and  not  questions  of  fact  or  of  mixed  law  and  fact  involving 
inferences  of  fact  from  particular  facts  stated  in  the  certifi- 
cates; nor  yet  the  whole  case  even  if  divided  into  several 
pomts.    Jeivdl  v.  Knight,  123  U.  S.  426,  433. 

And  finally  it  has  been  settled  that  the  whole  case,  even 
when  its  decision  turns  upon  matter  of  law  only,  cannot 
be  sent  here  by  certificate  of  division. 

In  White  v.  Turk,  12  Pet.  238,  H  was  said:  ''The  certificate 
of  the  judges,  in  this  case,  leaves  no  doubt  that -the  whole 
cause  was  submitted  to  the  Circuit  Court,  by  the  motion  to 
set  aside  the  judgment  on  the  bond.  And,  had  the  court 
agreed  in  opinion,  and  rendered  a  judgment  upon  the  points 
submitted ;  it  would  have  been  conclusive  of  the  whole  matter 
in  controversy  between  the  parties.  This  certificate,  there- 
fore, brings  the  whole  cause  before  this  Court;  and,  if  we  were 
to  decide  the  questions  presented,  it  would,  in  effect,  be  the 
exercise  of  original,  rather  than  appellate  jurisdiction."  This 
practice  was  declared  irregular  by  Chief  Justice  Taney  in  Web- 
ster V.  Cooper,  10  How.  54,  and  the  Chief  Justice  added  that  it 
"  would,  if  sanctioned,  convert  this  court  into  one  of  original 
jurisdiction  in  questions  of  law,  instead  of  being,  as  the  Con- 
stitution intended  it  to  be,  an  appellate  court  to  revise  the 
decisions  of  inferior  tribunals."  So  Mr.  Justice  Miller,  in 
United  States  v.  Perrin,  131  U.  S.  55,  58,  said: 

"But  it  never  was  designed  that,  because  a  case  is  a  trouble- 


222  OCTOBER  TERM,  1909. 

Opimon  of  the  Court.  215  XT.  S. 

some  one,  or  is  a  new  one,  and  because  the  judges  trying  the 
case  may  not  be  perfectly  satisfied  as  regards  all  the  points 
raised  in  the  course  of  the  trial,  the  whole  matter  shall  be 
referred  to  this  court  for  its  decision  in  advance  of  the  regu- 
lar trial,  or  that,  in  any  event  the  whole  case  shall  be  thus 
brought  before  this  court. 

"Such  a  sjrstem  converts  the  Supreme  Court  into  a  nisi 
jjrius  trial  court;  whereas,  even  in  cases  which  come  here  for 
review  in  the  ordinary  course  of  judicial  proceeding,  we  are 
always  and  only  an  appellate  court,  except  in  the  limited 
class  of  cases  where  the  court  has  original  jurisdiction." 

Without  discussing  the  evolution  of  the  use  of  certificates 
reference  to  the  legislation  given  below  may  be  profitable.* 

*  Section  6  of  the  ''  Act  to  amend  the  judicial  system  of  the  United 
States,"  April  29,  1802,  c.  31,  2  Stat.  156,  159,  provided: 

"That  whenever  any  question  shall  occur  before  a  Circuit  Court, 
upon  which  the  opinions  of  the  judges  shall  be  opposed,  the  point  upon 
which  the  disagreement  shall  happen,  shall,  during  the  same  term, 
upon  the  request  of  either  party,  or  their  counsel,  be  stated  under  the 
direction  of  the  judges,  and  certified  under  the  seal  of  the  court,  to 
the  Supreme  Court,  at  their  next  session  to  be  held  thereafter^  and 
shall,  by  the  said  court,  be  finally  decided.  And  the  decision  of  the 
Supreme  Court,  and  their  order  in  the  premises,  shall  be  remitted 
to  the  Circuit  Court,  and  be  there  entered  of  record,  and  shall  have 
effect  according  to  the  nature  of  the  said  judgment  and  order:  Pro» 
vided,  That  nothing  herein  contained  shall  prevent  the  cause  from 
proceeding,  if,  in  the  opinion  of  the  court,  further  proceedings  can  be 
had  without  prejudice  to  the  merits.    .     .    ." 

This  act  was  superseded  by  that  of  June  1,  1872,  c.  255,  17  Stat. 
196,  which  provided: 

''That  whenever,  in  any  suit  or  proceeding  in  a  Circuit  Court  of 
the  United  States,  being  held  by  a  justice  of  the  Supreme  Court  and 
the  circuit  judge  or  a  district  judge,  or  by  the  circuit  judge  and  a 
district  judge,  there  shall  occur  any  difference  of  opinion  between  the 
judges  as  to  any  matter  or  thing  to  be  decided,  ruled,  or  ordered  by 
the  court,  the  opinion  of  the  presiding  justice  or  the  presiding  judge 
shall  prevail,  and  be  considered  the  opinion  of  the  court  for  the  time 
being;  but  when  a  final  judgment,  decree,  or  order  in  such  suit  or 
proceeding  shall  be  entered,  if  said  judges  shall  certify,  as  it  shall  be 


B.  &  O.  R.  R.  V.  INTERSTATE  COMM.  COMM.    223 
215  U.  S.  Opinion  of  the  Ck>urt. 

In  the  present  case  no  final  judgment  or  decree  or  order 
determinative  of  the  merits  was  rendered,  but  the  court  or- 
dered "that  this  case  be  certified  for  review  to  the  Supreme 
Court  of  the  United  States,"  and  that  "a  transcript  of  the 
record  and  proceedings  of  the  cause  aforesaid,  together  with 
all  things  thereunto  relating,  be  transmitted  to  the  said 
Supreme  Court  of  the  United  States;  and  the  same  is  trans- 
mitted accordingly." 

The  act  of  Congress  of  February  11,  1903,  provided  in  its 
first  section  that  on  the  certificate  of  the  Attorney-General 
the  case  should  be  assigned  for  hearing  before  not  less  than 

their  duty  to  do  if  such  be  the  fact,  that  they  differed  in  opinion  as  to 
any  question  which,  under  the  act  of  Congress  of  April  twenty-ninth, 
eighteen  hundred  and  two,  might  have  been  reviewed  by  the  Supreme 
Court  on  certificate  of  difference  of  opinion,  then  either  party  may 
remove  said  final  judgment,  decree,  or  order  to  the  Supreme  Court, 
on  writ  of  error  or  appeal,  according  to  the  nature  of  the  case,  and 
subject  to  the  provisions  of  law  applicable  to  other  writs  of  error  or 
appeals  in  regsurd  to  bail  and  supersedeas." 

That  was  carried  forward  in  1874,  by  §§  050,  652,  654,  693  and  697 
of  the  Revised  Statutes.  Section  6  of  the  Judiciary  Act  of  March  3, 
1891,  c.  517«  26  Stat.  826,  828,  provided: 

"Sec.  6.  .  .  .  Excepting  that  in  every  such  subject  within 
its  appellate  jurisdiction  the  Circuit  Court  of  Appeals  at  any  time  may 
certify  to  the  Supreme  Court  of  the  United  States  any  questions  or 
propositions  of  law  concerning  which  it  desires  the  instruction  of  that 
court  for  its  proper  decision. 

"And  thereupon  the  Supreme  Court  may  either  give  its  instruction 
on  the  questions  and  propositions  certified  to  it,  which  shall  be  bind- 
ing upon  the  Circuit  Courts  of  Appeals  in  such  case,  or  it  may  require 
that  the  whole  record  and  cause  may  be  sent  up  to  it  for  its  considera- 
tion, and  thereupon  shall  decide  the  whole  matter  in  controversy  in 
the  same  manner  as  if  it  had  been  brought  there  for  review  by  writ  of 
error  or  appeal. 

"And  excepting  also  that  in  any  such  case  as  is  hereinbefore  made 
final  in  the  Circuit  Court  of  Appeals  it  shall  be  competent  for  the 
Supreme  Court  to  require,  by  certiorari  or  otherwise,  any  such  case 
to  be  certified  to  the  Supreme  Court  for  its  review  and  determination 
with  the  same  power  and  authority  in  the  case  as  if  it  it  had  been 
carried  by  appeal  or  writ  of  error  to  the  Supreme  Court.*' 


224  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

three  judges,  and  that  '^in  the  event  the  judges  sitting  in 
such  case  shall  be  divided  in  opinion,  the  case  shall  be  certi- 
fied to  the  Supreme  Court  for  review  in  like  manner  as  if 
taken  there  by  appeal  as  hereinafter  provided."  The  order 
of  the  Circuit  Court  pursues  the  language  of  this  provision 
and  attempts  to  send  up  the  whole  case  to  be  determmed  by 
this  court.  This  invokes  the  exercise  of  original  jurisdiction, 
and  cannot  be  sustained. 

In  a  note  to  United  StaJtes  v.  Ferreiray  13  How.  40,  52, 
which  was  inserted  by  order  of  the  court,  the  Chief  Justice 
states  the  substance  of  the  case  of  the  United  States  v.  Yale 
Todd,  which  was  decided  in  February,  1794,  but  not  printed, 
as  there  was  at  that  time  no  official  reporter.  This  note  thus 
concludes: 

"In  the  early  days  of  the  Government,  the  right  of  Con- 
gress to  give  original  jurisdiction  to  the  Supreme  Court,  in 
cases  not  enumerated  in  the  Constitution,  was  maintained 
by  many  jurists,  and  seems  to  have  been  entertained  by  the 
learned  judges  who  decided  Todd^s  case.  But  discussion 
and  more  mature  examination  has  settled  the  question  other- 
wise; and  it  has  long  been  the  established  doctrine,  and  we 
believe  now  assented  to  by  all  who  have  examined  the  sub- 
ject, that  the  original  jurisdiction  of  this  court  is  confined 
to  the  cases  specified  in  the  Constitution,  and  that  Con- 
gress cannot  enlarge  it.  In  all  other  cases  its  power  must  be 
appellate." 

Such  is  the  settled  rule,  and  it  is  inadmissible  to  suppose 
that  it  was  the  intention  of  Congress  to  run  counter  to  it. 

Ordinarily  in  the  Federal  courts,  in  the  absence  of  express 
statutory  authority,  no  appeal  can  be  taken  or  writ  of  error 
brought  except  from  a  final  decree  or  to  a  final  judgment. 
McLish  V.  Roff,  141  U.  S.  661,  665;  Forgay  v.  Conrad,  6  How. 
201,  205.  There  is  no  final  judgment  or  decree  in  this  case, 
nor  any  judicial  determination  from  which  an  appeal  would 
lie.  The  Alicia,  7  Wall.  571,  is  in  point.  In  that  case  it  ap- 
peared that  on  the  ninth  day  of  January,  1863,  a  decree  of 


B.  &  O.  R.  R.  V.  INTERSTATE  COMM.  COMM.    225 
215  U.  8.  Opinion  of  the  Court. 

condemnation  had  been  entered  in  the  District  Court  against 
the  Alicia  and  her  cargo  for  violation  of  the  blockade.  From 
this  decree  an  appeal  was  allowed  and  taken  to  the  Circuit 
Court;  and  on  the  eighteenth  of  May,  1867,  an  order  was 
made  in  that  court  on  the  application  of  the  parties  in  inter- 
est— there  being  at  this  time,  in  the  Circuit  Court,  no  order, 
judgment  or  decree  in  the  case — for  the  transfer  of  the  cause 
to  this  court  under  the  thirteenth  section  of  the  act  of  June  30, 
1864,  which  enacted  that  prize  causes,  depending  in  the 
Circuit  Court,  might  be  so  transferred.  This  court  held  that 
the  cause  was  removed  to  the  Circuit  Court  by  the  appeal 
from  the  decree  of  the  District  Court  and  that  that  decree 
was  vacated  by  the  appeal,  and  that  the  Circuit  Court  ac- 
quired full  jurisdiction  of  the  cause  and  was  fully  authorized  to 
proceed  to  final  hearing  and  decree.  And  Chief  Justice  Chase 
said  (p.  573) :  "  Nor  can  it  be  doubted  that,  under  the  Con- 
stitution, this  court  can  exercise,  in  prize  causes,  appellate 
jurisdiction  only.  An  appellate  jurisdiction  necessarily  im- 
plies some  judicial  determination,  some  judgment,  decree, 
or  order  of  an  inferior  tribunal,  from  which  an  appeal  has 
been  taken.  But  in  this  case  there  had  been  no  such  order, 
judgment,  or  decree  in  the  Circuit  Court;  and  there  was  no 
subsisting  decree  in  the  District  Court,  from  which  an  ap- 
peal could  be  taken.  We  are  obliged  to  conclude  that,  in 
the  provision  for  transfer,  an  attempt  was  inadvertently 
made  to  give  to  this  court  a  jurisdiction  withheld  by  the 
Constitution,  and,  consequently,  that  the  order  of  transfer 
was  without  effect.  The  cause  is  still  depending  in  the  Cir- 
cuit Court." 

The  result  is  that  the  order  must  be  set  aside  and  the  case 
remanded  to  the  Circuit  Court  with  directions  to  proceed  in 
conformity  with  law. 

Ordered  accordingly. 
VOL.  ccxv — 15 


226  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 


SOUTHERN  PACIFIC  COMPANY  v,  INTERSTATE 

COMMERCE  COMMISSION. 

CERTIFICATE  OF  THE  JUDGES  OF  THE  CIRCUIT  COURT  OF  THE 
UNITED  STATES  FOR  THE  NORTHERN  DISTRICT  OF  CALIFORNIA. 

No.  275.    Argued  October  12,  13,  1909.— Decided  December  6,  1909. 

On  authority  of  preceding  case  hdd  that  under  §  1  of  the  expediting 
act  of  February  11,  1903,  c.  544,  32  Stat.  823,  the  case,  although 
turning  only  on  a  point  of  law,  cannot  be  certified  to  this  court, 
in  absence  of  any  judgment,  opinion,  decision,  or  order  deter- 
minative of  the  case  below. 

The  facts  are  stated  in  the  opinion. 

Mr.  Maxwell  Evarts,  with  whom  Mr.  F.  C.  Diilardy  Mr. 
W.  W,  Cotton,  Mr.  P.  F.  Dunne  and  Mr.  Robert  S.  LoveU 
were  on  the  brief,  for  the  Southern  Pacific  Company. 

Mr.  Wade  H.  EUis,  Assistant  to  the  Attorney-General,  with 
whom  Mr.  Luther  M.  Waiter  and  Mr,  Edtdn  P.  Grosvenar, 
Special  Assistants  to  the  Attorney-General,  were  on  the  brief, 
for  the  Interstate  Commerce  Commission. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the 
court. 

This  case  comes  here  upon  a  certificate  of  the  three  judges 
of  the  Circuit  Court  for  the  Northern  District  of  Califomia 
under  §  1  of  the  expediting  act  of  February  11,  1903,  c.  544, 
32  Stat.  823,  as  construed  by  them. 

The  suit  was  brought  by  the  railroad  companies  in  the 
Circuit  Court  to  restrain  the  enforcement  of  an  order  of  the 
Interstate  Commerce  Commission,  which  established  a  maxi- 


YORDI  V,  NOLTK  227 

215  IT.  S.  Syllabus. 

mum  rate  for  the  transportation  of  rough  green  fir  lumber 
from  points  in  the  Willamette  Valley,  Oregon,  to  San  Fran- 
cisco. The  case  came  on  for  argument  before  the  three  Cir- 
cuit Judges  upon  the  demurrer  of  the  commission  to  the 
amended  bill  of  complaint,  to  which  was  attached  the  opin- 
ion and  order  of  the  commission. 

The  Circuit  Judges  certified  the  whole  case,  and  it  comes 
here  without  opinion,  decision  or  assignment  of  errors. 

Upon  the  grounds  stated  in  No.  339,  Baltimore  &  Ohio 
Railroad  Company  v.  Interstate  Commerce  Commission,  ante, 
p.  216,  the  certificate  is  dismissed  and  the  case  remanded  to 
the  Circuit  Court  with  directions  to  proceed  therein  in  con- 
formity with  law. 

Ordered  accordingly. 


■«•#> 


YORDI  v.  NOLTE,  UNITED  STATES  MARSHAL. 

APPEAL   FROM    THE    DISTRICT   COURT    OF   THE    UNITED    STATES 
FOR  THE   WESTERN   DISTRICT   OF  TEXAS. 

No.  382.    Submitted  October  22,  1909.— Decided  December  6,  1909. 

In  foreign  extradition  proceedings  the  complaint  is  sufficient  to  au- 
thorize the  commissioner  to  act  if  it  so  clearly  and  explicitly  states 
a  treaty  crime  that  the  accused  knows  exactly  what  the  charge  is; 
nor  need  the  record  and  depositions  from  the  demanding  country 
be  actually  fastened  to  the  complaint. 

In  this  case  held  that  depositions  in  the  possession  of  the  officer  of 
the  demanding  country  making  the  complaint,  which  showed 
actual  groimds  for  the  prosecution  and  of  which  the  commissioner 
had  knowledge,  from  their  use  in  a  former  proceeding,  were  ad- 
missible on  the  hearing  before  the  commissioner  and  were  also 
admissible  for  the  purpose  of  vesting  jurisdiction  in  him  to  issue 
the  warrant. 

166  Fed.  Rep.  921,  affirmed. 


228  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  8. 

Pablo  Yordi,  being  detained  in  custody  by  the  United 
States  marshal  of  the  Western  District  of  Texas,  obtained 
from  the  District  Court  for  that  district  a  writ  of  habeas 
corpus  to  secure  his  release.  He  was  charged  in  the  republic 
of  Mexico  with  the  crime  of  "fraud  and  forgery  of  docu- 
ments," and  a  warrant  for  his  arrest  was  duly  issued  by  the 
criminal  judge  of  the  city  of  Guadalajara.  He  avoided  arrest 
in  Mexico  and  fled  to  El  Paso,  Texas,  where  he  was  detained 
in  prison,  under  an  order  of  the  United  States  commissioner, 
awaiting  the  issue  by  the  proper  authorities  of  an  order  for 
his  extradition. 

At  the  hearing  on  the  habeas  corpus  it  was  stipulated  that 
the  crimes  in  the  complaint  made  before  the  United  States 
commissioner  were  extraditable  offenses  under  the  existing 
treaty  between  the  United  States  and  Mexico;  that  at  the 
time  of  the  hearing  before  the  commissioner  the  complaint 
in  the  case  made  by  A.  V.  Lomeli,  consul  of  Mexico,  was 
solely  upon  information  and  belief;  that  he  had  no  actual 
or  personal  knowledge  of  the  commission  of  any  offense,  but 
at  the  time  of  making  the  complaint  the  said  Mexican  consul 
had  before  him  the  record  and  depositions  of  the  witnesses 
of  the  republic  of  Mexico  in  the  proceedings  before  the  crimi- 
nal judge  of  Guadalajara. 

There  were  three  complaints  made  against  Yordi.  The 
first,  made  by  the  assistant  United  States  attorney,  was  dis- 
missed. The  second  and  third  were  made  by  the  Mexican 
consul. 

Upon  the  hearing  under  the  first  complaint  the  record  and 
evidence  contained  in  the  proceedings  in  Mexico  were  in- 
troduced in  evidence  before  the  commissioner,  as  they  were 
also  on  the  hearing  on  the  second  complaint.  The  commis- 
sioner found  that  there  was  probable  cause  to  believe  Yordi 
guilty  of  the  offense  of  uttering  a  forged  instrument  in  the 
.State  of  Jalisco,  United  States  of  Mexico,  on  or  about  the 
twenty-sixth  day  of  May,  1908,  and  that  there  was  also 
probable  cause  to  believe  Yordi  had  committed  the  offense 


YORDI  V.  NOLTE  229 

215  U.  S.  Opinion  of  the  Ck>urt. 

of  obtaining  money  by  means  of  false  device  in  the  Mexican 
state  mentioned.  The  commissioner  therefore  ordered  Yordi 
to  be  held  for  extradition  to  the  republic  of  Mexico  on  the 
charges  alleged  in  the  third  and  fourth  counts  of  the  com- 
plaint, and  that  he  be  committed  to  the  county  jail  of  El 
Paso  County,  Texas,  to  await  the  action  of  the  proper  au- 
thorities in  the  city  of  Washington,  upon  demand  for  his 
extradition  to  the  republic  of  Mexico. 

The  case  was  heard  before  Maxey,  District  Judge,  who 
discharged  the  writ  of  habeas  carpus^  and  required  the  marshal 
to  hold  the  petitioner  in  custody  until  a  warrant  of  extradi- 
tion was  duly  issued.  From  this  final  order  this  appeal  was 
taken.  Judge  Maxey's  opinion  is  reported  in  166  Fed.  Rep. 
921,  Ex  parte  Yordi, 

Mr.  Waters  Davis  for  appellant. 

Mr,  Assistant  Attorney-General  Russell  for  appellee. 

Mr.  Chief  Justice  Fuller,  after  making  the  foregoing 
statement,  delivered  the  opinion  of  the  court. 

The  contention  of  appellant's  counsel  is  that,  although  the 
Mexican  consul  had  possession  of  the  record  from  Mexico  and 
the  depositions  of  the  witnesses  therein  contained,  which 
embodied  the  proceedings  had  before  the  judge  at  Guadala- 
jara, Mexico,  including  the  testimony  of  witnesses,  which 
appeared  to  the  judge  amply  suflScient  to  justify  an  order 
for  the  apprehension  of  the  accused,  nevertheless  there  was 
still  necessary,  in  order  for  the  commissioner  to  take  juris- 
diction to  hear  the  application  that  either  the  record  from 
Mexico  should  be  attached  to  the  complaint  or  that  the  com- 
plaint should  disclose  upon  its  face  the  sources  of  the  consul's 
information.  This  record  from  Mexico  was  not  only  before 
the  Mexican  consul  when  he  made  the  complaint  against 
Yordi,  now  under  consideration,  but  the  commissioner  was 


230  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

thoroughly  familiar  with  it,  as  it  had  been  introduced  in 
evidence  before  him  upon  the  hearing  of  the  first  complaint. 

Judge  Maxey  was  of  opinion  that  as  depositions  from  a 
foreign  country  were  admissible  in  evidence  upon  the  hear- 
ing before  the  commissioner,  they  were  also  to  be  admitted 
for  the  purpose  of  vesting  jurisdiction  in  the  commissioner 
to  issue  the  warrant,  and  as  in  this  case  the  depositions  were 
in  themselves  sufficient  to  satisfy  the  commissioner  that  the 
prosecution  against  the  accused  was  based  upon  real  grounds 
and  not  upon  mere  suspicion  of  guilt,  it  was  not  indispensable 
to  the  jurisdiction  of  the  commissioner  that  the  record  and 
depositions  from  Mexico  should  be  actually  fastened  to  the 
complaint  when  they  were  in  the  custody  and  keeping  of 
the  consul,  and  the  commissioner  was  already  in  possession 
of  the  information  which  they  contained.  We  concur  in  these 
views. 

The  general  doctrine  in  respect  of  extradition  complaints 
is  well  stated  by  Judge  Coxe  in  Ex  parte  Stemaman,  77  Fed. 
Rep.  595,  597,  as  follows : 

"The  complaint  should  set  forth  clearly  and  briefly  the 
offense  charged.  It  need  not  be  drawn  with  the  formal  pre- 
cision of  an  indictment.  If  it  be  sufficiently  explicit  to  in- 
form the  accused  person  of  the  precise  nature  of  the  charge 
against  him  it  is  sufficient.  The  extreme  technicality  with 
which  these  proceedings  were  formerly  conducted  has  given 
place  to  a  more  liberal  practice,  the  object  being  to  reach  a 
correct  decision  upon  the  main  question — is  there  reason- 
able cause  to  believe  that  a  crime  has  been  committed?  The 
complaint  may,  in  some  instances,  be  upon  information  and 
beUef .  The  exigencies  may  be  such  that  the  criminal  may 
escape  punishment  unless  he  is  promptly  apprehended  by 
the  representatives  of  the  country  whose  law  he  has  violated. 
From  the  very  nature  of  the  case  it  may  often  happen  that 
such  representative  can  have  no  personal  knowledge  of  the 
crime.  If  the  offense  be  one  of  the  treaty  crimes,  and  if  it 
be  stated  clearly  and  explicitly  so  that  the  accused  knows 


YORDI  V.  NOLTE.  231 

216  U.  S.  Opinion  of  the  Court. 

exactly  what  the  charge  is,  the  complaint  is  suflScient  to 
authorize  the  commissioner  to  act.  The  foregoing  proposi- 
tions are,  it  is  thought,  sustained  by  the  following  authori- 
ties: In  re  Farez,  7  Blatchf.  345,  Fed.  Cas.  No.  4,645;  In  re 
Roth,  15  Fed.  Rep.  506;  In  re  Henrich,  5  Blatchf.  414,  Fed. 
Cas.  No.  6,369;  Ex  parte  Van  Hoven,  4  Dill.  415,  Fed.  Cas. 
No.  16,859;  In  re  Breen,  73  Fed.  Rep.  458;  Ex  parte  Lane,  6 
Fed.  Rep.  34;  In  re  Herres,  33  Fed.  Rep.  165;  Castro  v.  De  Uri- 
arte,  16  Fed.  Rep.  93;  In  re  MacdonneU,  11  Blatchf.  79,  Fed. 
Cas.  No.  8,771." 

It  was  argued  that  this  court  had  held  otherwise,  particu- 
lariy  in  Rice  v,  Ames,  180  U.  S.  371,  where  Mr.  Justice  Brown, 
delivering  the  opinion,  declared  that  several  counts  of  the 
complaint  were  obviously  insuflScient,  "since  the  charges 
were  made  solely  upon  information  and  belief,-  and  no  at- 
tempt was  made  even  to  set  forth  the  sources  of  information, 
or  the  grounds  of  affiant's  belief."  But  Mr.  Justice  Brown 
further  said  (p.  375) : 

"We  do  not  wish,  however,  to  be  understood  as  holding 
that,  in  extradition  proceedings,  the  complaint  must  be 
sworn  to  by  persons  having  actual  knowledge  of  the  offense 
charged.  This  would  defeat  the  whole  object  of  the  treaty, 
as  we  are  bound  to  assume  that  no  foreign  government  pos- 
sesses greater  power  than  our  own  to  order  its  citizens  to  go 
to  another  country  to  institute  legal  proceedings.  This  is 
obviously  impossible.  The  ordinary  course  is  to  send  an 
officer  or  agent  of  the  Government  for  that  purpose,  and 
Rev.  Stat.,  §5271  makes  special  provisions  Hhat  in  every 
case  of  complaint  and  of  a  hearing  upon  the  return  of  the 
warrant  of  arrest,  any  depositions,  warrants,  or  other  papers 
offered  in  evidence,  shall  be  admitted  and  received  for  the 
purpose  of  such  hearing  if  they  shall  be  properly  and  legally 
authenticated  so  as  to  entitle  them  to  be  received  as  evidence 
of  the  criminality  of  the  person  so  apprehended,  by  the 
tribunals  of  the  foreign  country  from  which  the  accused 
party  shall  have  escaped,  and  copies  of  any  such  depositions, 


232  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

warrants  or  other  papers,  shall,  if  authenticated  according 
to  the  law  of  such  foreign  country,  be  in  like  manner  received 
as  evidence,'  of  which  authentication  the  certificate  of  the 
diplomatic  or  consular  officer  of  the  United  States  shall  be 
sufficient.  This  obviates  the  necessity  which  might  other- 
wise exist  of  confronting  the  accused  with  the  witnesses 
against  him.  Now,  it  would  obviously  be  inconsistent  to 
hold  that  depositions,  which  are  admissible  upon  the  hear- 
ing, should  not  also  be  admitted  for  the  purpose  of  vesting 
jurisdiction  in  the  commissioner  to  issue  the  warrant.  In- 
deed, the  words  of  the  statute,  'in  every  case  of  complaint,^ 
seem  to  contemplate  this  very  use  of  them.  If  the  officer 
of  the  foreign  government  has  no  personal  knowledge  of  the 
facts,  he  may  with  entire  propriety  make  the  complaint  upon 
information  and  belief,  stating  the  sources  of  his  information 
and  the  grounds  of  his  belief,  and  annexing  to  the  complaint 
a  properly  certified  copy  of  any  indictment  or  equivalent 
proceeding,  which  may  have  been  found  in  the  foreign  coun- 
try, or  a  copy  of  the  depositions  of  witnesses  having  actual 
knowledge  of  the  facts,  taken  under  the  treaty  and  act  of 
Congress.  This  will  afford  ample  authority  to  the  commis- 
sioner for  issuing  the  warrant." 

The  same  learned  judge  said  in  Grin  v.  Shines  187  U.  S. 
181,  193: 

''All  that  is  required  by  §  5270  is  that  a  complaint  shall 
be  made  under  oath.  It  may  be  made  by  any  person  acting 
under  the  authority  of  the  foreign  government  having  knowl- 
edge of  the  facts,  or  in  the  absence  of  such  person,  by  the 
official  representative  of  a  foreign  government  based  upon 
depositions  in  his  possession.'' 

We  think  the  evidence  produced  at  the  hearing  justified 
the  detention  of  the  accused  and  corrected  any  irregularity 
in  the  complaint.  As  this  court  said  in  Nashimura  Ekiu  v. 
United  States,  142  U.  S.  651,  662: 

"A  writ  of  habeas  corpiLs  is  not  like  an  action  to  recover 
damages  for  an  unlawful  arrest  or  commitment,  but  its  ob- 


UNITED  STATES  v,  CORBETT.  233 

215  U.  S.  Syllabus. 

ject  is  to  ascertain  whether  the  prisoner  can  lawfully  be  de- 
tained in  custody;  and  if  sufficient  ground  for  his  detention 
by  the  Government  is  shown,  he  is  not  to  be  discharged  for 
defects  in  the  original  arrest  or  commitment.  Ex  parte  Boll- 
man  &  SwartvxnU,  4  Cranch,»75,  114,  125;  Coleman  v.  Tennes- 
see, 97  U.  S.  509,  519;  United  States  v.  McBratney,  104  U.  S. 
621,  624;  KeUy  v.  Thomas,  15  Gray,  192;  The  King  v.  Marks,  3 
East,  157;  Shuttlewarth's  Case,  9  Q.  B.  651." 

The  District  Judge  was  right,  and  his  final  order  discharg- 
ing the  writ  of  habeas  corpus  is 

Affirmed, 


4^>»» 


UNITED  STATES  v.  CORBETT. 

ERROR  TO  THE   DISTRICT  COURT  OF  THE   UNITED  STATES  FOR 
TH3E   WESTERN   DISTRICT   OF  WISCONSIN. 

No.  236.    Argued  October  14,  1909.— Decided  December  6,  1909. 

Whether  the  person  deceived  by  false  entries  is  the  person  intended 
by  the  statute,  and  whether  the  averments  as  to  the  deceit  are 
sufficient  to  sustain  the  indictment,  are  questions  which  involve 
the  construction  of  the  statute  on  which  an  indictment  for  making 
false  entries  in  violation  of  §  5209,  Rev.  Stat.,  is  based,  and  this 
court  has  jurisdiction  to  review  under  the  Criminal  Appeals  Act 
of  March  2,  1907,  c.  2564,  34  Stat.  1246. 

The  construction  of  a  statute  in  a  particular,  in  regard  to  which  no 
question  was  raised,  will  not  prevent  the  determination  as  an 
original  question  of  how  the  statute  should  be  construed  in  that 
particular  when  controverted  in  a  subsequent  case. 

The  rule  of  strict  construction  of  penal  statutes  does  not  require  a 
narrow  technical  meaning  to  be  given  to  words  in  disregard  of  their 
context  and  so  as  to  frustrate  the  obvious  legislative  intent. 

Notwithstanding  the  rule  of  strict  construction  the  offense  of  deceiv- 
ing an  agent  by  doing  a  specified  act  may  include  deception  of  the 
officer  appointing  the  agent  where  the  statute  is  clearly  aimed  at 
the  deception;  and  under  §5209,  Rev.  Stat.,  the  making  of  false 


234  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

entries  with  the  intent  to  deceive  any  agent  appointed  to  examine 
the  affairs  of  a  national  bank,  includes  an  attempt  to  deceive  the 
Comptroller  of  the  Currency  by  false  entries  made  in  a  report  di- 
rectly to  him  under  §  5311,  Rev.  Stat. 

Where  intent  is  an  essential  ingredient  of  a  crime  it  may  be  charged 
in  general  terms  and  its  existence  ^becomes  a  question  for  the  jury, 
excepting  only  where  the  criminal  intent  could  not  as  a  matter  of 
law  have  existed  under  any  possible  circumstances. 

Under  Rev.  Stat.  §  5209,  false  entries  as  to  the  condition  of  a  national 

bank  may  be  made  with  intent  to  injure  the  bank  even  though 

they  show  the  bank  to  be  in  a  more  favorable  condition  than  it 

actually  is,  and  the  question  of  intent  to  injure  is  one  for  the  jury. 

Fed.  Rep.       ,  reversed. 

The  facts,  which  involve  the  construction  of  §  5209,  Rev. 
Stat.,  are  stated  in  the  opinion. 

The  Solicitor  General  for  the  United  States : 

The  allegation  in  each  count  of  the  indictment  that  the 
false  entry  in  the  report  to  the  Comptroller  of  the  Currency 
was  made  "with  intent  thereby  to  injure  and  defraud  the 
bank''  is  sufficient  to  sustain  the  indictment.  The  natural 
result  of  false  entries  in  such  a  report  is  an  injury  to  the 
association;  and  the  officer  making  such  false  entries,  and 
those  aiding  and  abetting  him  in  making  them,  are  con- 
clusively presumed  to  intend  such  result.  As  to  the  proper 
rule  with  reference  to  proof  of  criminal  intent  under  §  5209, 
Rev.  Stat.,  see  United  States  v.  Harper,  33  Fed.  Rep.  481,  482. 

All  national  banks  are  under  the  supervision  and  control 
of  the  Comptroller  of  the  Currency,  with  the  approval  of  the 
Secretary  of  the  Treasury.  The  Comptroller  may  cause 
examinations  of  national  banks  to  be  made  as  often  as  he 
may  deem  necessary  to  keep  himself  informed  as  to  their 
exact  condition  (§  5240,  Rev.  Stat.);  and  if  at  any  time  he 
shall  find  that  a  national  bank  is  in  an  insolvent  condition 
or  that  the  law  has  been  knowingly  violated  by  its  officers 
or  agents,  he  shall  have  it  placed  in  the  hands  of  a  receiver 
and  its  assets  distributed  (§  5239,  Rev.  Stat.)  Act  June  30, 
1876,  19  Stat.  63. 


UNITED  STATES  v.  CORBETT.  236 

215  U.  S.  Argument  for  Defendant  in  Error. 

National  bank  exanainers  are  but  agents  of  the  Comp- 
troller, and  their  acts  are  his  in  contemplation  of  law.  The 
Comptroller,  while  not  required  by  statute  to  make  personal 
examination  of  an  association's  books,  is  necessarily  vested 
with  the  right  so  to  do,  and  is  in  fact  an  agent  appointed  to 
examine  the  affairs  of  every  national  bank.  Since  the  object 
of  every  examination  is  to  give  information  to  the  Comp- 
troller, who  alone  has  power  to  act,  the  purpose  of  every 
false  entry  in  a  report  must  be  primarily  to  deceive  the  Comp- 
troller, though  the  deception  be  practiced  through  an  ex- 
aminer appointed  by  him. 

The  Comptroller,  therefore,  being  an  agent  appointed  to 
examine  the  affairs  of  national  banks,  the  allegation  in  each 
coimt  that  the  entry  was  made  with  intent  "to  deceive  an 
agent  appointed  to  examine  the  affairs  of  such  associations, 
to-wit,  the  Comptroller  of  the  Currency  of  the  United  States," 
is  suJBGicient. 

The  clause  in  §5209,  which  declares  it  to  be  an  offense 
to  make  false  entries  in  a  report  has  been  liberally  construed 
by  the  courts.  United  States  v.  HughiUj  45  Fed.  Rep.  47; 
United  States  v.  Booker ^  80  Fed.  Rep.  376;  Bacon  v.  United 
States,  97  Fed.  Rep.  35. 

Mr.  T.  J.  Connor  for  defendant  in  error: 

This  court  has  not  jurisdiction  to  review  under  the  act  of 
March  2,  1907.  The  indictment  was  dismissed  below  be- 
cause the  charge  of  intent  was  not  sufficiently  stated.  The 
construction  of  the  statute  was  not  involved.  United  States 
v.  Keitely  211  U.  S.  370.  This  appears  by  the  opinion  which 
as  part  of  the  record  is  conclusive  here.  Jacks  v.  Helena, 
115  U.  S.  288;  Keiger  v.  Railroad  Co.,  125  U.  S.  39. 

The  decision  below  was  right.  The  statute  though  defin- 
ing the  offense  as  a  misdemeanor  in  fact  makes  it  a  felony, 
United  States  v.  Cadwaiader,  59  Fed.  Rep.  677, — an  infamous 
crime,  Ftdsorn  v.  United  States,  160  U.  S.  122, — and  the 
severity  of  the  punishment  negatives  the  idea  that  mere 


236  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck)urt.  215  U.  8. 

technical  violations  are  to  be  punished.  The  statute  being 
highly  penal  must  be  strictly  construed.  United  States  v. 
Potter,  56  Fed.  Rep.  97. 

The  Comptroller  of  the  Currency  is  not  ''an  agent"  within 
the  strict  construction  of  the  statute.  As  to  the  construction 
of  §  5209,  Rev.  Stat.,  see  Clemmt  v.  United  States,  149  Fed. 
Rep.  305;  United  States  v.  Barton,  10  Fed.  Rep.  874. 

A  false  report  such  as  is  charged  in  the  indictment  and 
which  makes  the  bank  appear  in  better  shape  than  it  really  is, 
is  not  made  with  intent  to  injure  the  bank. 

Even  though  a  report  be  false,  if  it  makes  the  bank 
appear  stronger  than  it  really  is  there  is  no  intent  to  in- 
jure it. 

Mb.  Justice  Whttb  delivered  the  opinion  of  the  court. 

The  trial  court  quashed  portions  of  each  count  of  the  in- 
dictment and  sustained  a  demurrer  to  the  remainder.  This 
direct  review  is  sought  because  of  the  contention  that  the 
rulings  in  question  were  based  on  a  construction  of  Rev. 
Stat.,  §  5209. 

Each  of  the  six  counts  charged  Corbett,  one  of  the  defend- 
ants, who  was  cashier  of  the  Bank  of  Ladysmith,  a  national 
banking  association,  with  making  a  false  entry  as  to  the  | 

condition  of  the  bank  in  a  report  made  to  the  Comptroller  ! 

of  the  Currency.  The  charge  was  that  the  false  entry  was 
made  with  the  intent  to  injure  and  defraud  said  association 
and  to  deceive  an  agent  appointed  to  examine  the  affairs  of 
such  association,  to  wit,  the  Comptroller  of  the  Currency  of 
the  United  States.    Newman  and  McGill,  the  other  defend-  | 

ants,  who  were  directors  and  respectively  president  and  vice-  i 

president  of  the  bank,  were  charged  in  each  count  with  hav- 
ing with  like  intent  aided,  abetted,  etc.,  Corbett  in  the  making 
of  the  false  entry.    The  motion  to  quash  was  directed  against  | 

that  portion  of  each  count  which  charged  that  the  alleged 
acts  were  done  with  intent  to  deceive  an  agent  appointed  to 


UNITED  STATES  v.  CORBETT.  237 

216  IT.  S.  OpinioQ  of  the  Court. 

examine,  etc.  The  demurrer  challenged  generally  the  suffi- 
ciency of  the  averments  of  each  count. 

It  is  insisted  that  there  is  no  jurisdiction  to  review,  be- 
cause the  decision  below  was  not  based  upon  the  invalidity  or 
construction  of  any  statute.  We  think  that,  within  the  ruling 
in  United  States  v.  Keitel,  211  U.  S.  370,  the  construction  of 
Rev.  Stat.,  §  5209  was  involved.  The  suggestion  of  want  of 
jurisdiction  is,  therefore,  without  merit. 

In  disposing  of  the  merits  we  shall  consider  separately  the 
rulings  on  the  motion  to  quash  and  upon  the  demurrer. 

1.  The  motion  to  quash. 

The  motion  was  sustained  upon  the  theory  that  no  offense 
was  stated  by  the  charge  of  making  a  false  entry  in  the  report 
to  the  Comptroller  of  the  Currency  with  the  intent  to  de- 
ceive an  agent  appointed  to  examine  the  affairs  of  the  bank, 
viz.,  the  Comptroller  of  the  Currency,  because  that  official 
was  not  such  an  agent.  While  this  was  the  only  question 
actually  decided,  nevertheless  the  reasoning  which  led  the 
court  to  the  conclusion  by  it  applied  went  further  and  caused 
the  court  to  declare  that  the  statute  in  the  particular  men- 
tioned was  in  effect  inoperative.  This  because  not  alone  was 
the  intent  to  deceive  the  Comptroller  of  the  Currency  not 
embraced,  but  also  the  intent  to  deceive  an  agent  appointed 
to  examine  was  excluded  so  far  as  a  report  made  to  the 
Comptroller  was  concerned,  as  such  agent  would  be  required 
to  examine  the  books  and  papers  of  the  bank  and  not  a  report 
made  to  the  Comptroller. 

We  are  thus  called  upon  to  construe  Rev.  Stat.,  §  5209. 
The  material  portion  of  that  section  is  as  follows : 

"Every  president,  director,  cashier,  teller,  clerk,  or  agent 
of  any  association  .  .  .  who  makes  any  false  entry  in 
any  book,  report,  or  statement  of  the  association,  with  in- 
tent ...  to  injure  or  defraud  the  association,  .  .  . 
or  to  deceive  .  .  .  any  agent  appointed  to  examine  the 
affairs  of  any  such  association,  and  every  person  who  with 
like  intent  aids  or  abets  any  officer,  clerk,  or  agent  in  any 


238  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

violation  of  this  section,  shall  be  deemed  guilty  of  a  mis- 
demeanor.    .     .     ." 

Before  analyzing  its  text  we  briefly  refer  to  authorities 
relied  upon  on  one  side  or  the  other  as  aflBrming  or  denying 
the  correctness  of  the  construction  affixed  to  the  section  by 
the  court  below. 

In  United  States  v.  BarUrw,  10  Fed.  Rep.  874,  Benedict, 
District  Judge,  sustained  a  motion  to  quash  certain  counts 
of  an  indictment,  which  charged  the  making  of  a  false  entry 
in  a  report  to  the  Comptroller  of  the  Currency,  with  the  in- 
tent to  deceive  that  officer,  and  held  in  a  brief  opinion  that 
the  Comptroller  was  not  an  agent  appointed  to  examine  the 
affairs  of  a  national  banking  association  within  the  meaning 
of  the  statute. 

In  Cochran  v.  United  States,  157  U.  S.  286,  which  involved 
a  review  of  convictions  under  indictments  for  making  false 
entries  in  reports  made  to  the  Comptroller  of  the  Currency, 
in  violation  of  Rev.  Stat.,  §  5209,  passing  on  the  objection 
that  no  one,  except  he  who  verified  reports  made  to  the 
Comptroller,  could  be  convicted  under  the  indictments,  the 
court,  among  other  things,  said  (p.  294) : 

"If  the  statements  of  Thomas  be  taken  as  true,  he,  al- 
though verifying  the  reports  as  cashier,  could  not  be  held 
criminally  liable  for  their  falsity,  since  he  took  and  believed 
the  statements  of  Cochran  and  Sayre  as  to  the  truth  and 
correctness  of  such  reports.  If  this  be  true,  there  was  lack- 
ing on  his  part  that  intent  to  defraud  the  association,  or  to 
deceive  the  Comptroller  of  the  Currency,  which  is  made,  by 
§  5209,  a  material  element  of  the  offense." 

On  page  298  the  court  considered  a  refusal  to  give  an  in- 
struction, which,  in  the  course  of  defining  a  false  entry,  said : 

"The  intention  to  deceive  is  essential  to  constitute  a  viola- 
tion of  the  statute,  and  you  must  be  satisfied  beyond  a  rea- 
sonable doubt  from  the  evidence,  first,  that  the  defendants 
or  one  of  them  made  a  false  entry  in  said  report ;  and,  second, 
that  it  was  made  with  the  intention  of  misleading  or  deceiv- 


UNITED  STATES  v.  CORBETT.  239 

215  U.  S.  Opinion  of  the  Court. 

ing  the  Comptroller  of  the  Currency,  or  some  other  person 
or  pci'sons  alleged  in  the  said  indictment." 

It  was  held  that  the  refused  instruction  was  substantially 
embodied  in  the  charge  as  given,  wherein,  among  other  things, 
the  trial  court  said  (p.  298) : 

"The  intent  must  have  been,  as  laid  in  the  indictment, 
to  mislead  and  deceive  one  of  these  parties,  either  some  of 
the  oflScers  of  the  bank  or  the  oflScer  of  the  Government  ap- 
pointed to  examine  into  the  affairs  of  the  bank.  ...  So 
that  you  must  find,  not  only  the  fact  that  there  was  an  omis- 
sion to  make  the  proper  entry,  but  that  with  it  was  an  intent 
to  conceal  the  fact  from  somebody  who  was  concerned  in  the 
bank,  or  concerned  in  overseeing  it,  and  supervising  its  opera- 
tions and  the  conduct  of  its  business." 

Since  the  decision  of  the  Cochran  case,  and  without  citing 
that  case  on  that  subject,  in  Clement  v.  United  StaieSj  149 
Fed.  Rep.  305,  the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit,  considering  an  objection  that  an  allegation  in  a 
coimt  was  immaterial  which  charged  that  a  false  entry  was 
made  in  a  report  to  the  Comptroller  of  the  Currency,  with 
intent  to  deceive  that  oflScial  and  any  agent  who  might  be 
appointed  to  examine  the  affairs  of  a  bank,  said  (p.  316) : 

"That  is  quite  correct  so  far  as  the  allegation  concerning 
the  intent  to  deceive  the  Comptroller  is  concerned.  Such 
intent  is  not  one  of  those  requisite  under  §  5209  to  con- 
stitute an  offense.  But  the  contention  is  not  correct  in  so 
far  as  the  allegation  relates  to  the  intent  to  deceive  an  agent 
who  might  be  appointed  to  examine  the  affairs  of  the  bank." 

Irrespective  of  the  direct  conflict  between  the  statement 
just  quoted  and  the  reasoning  of  the  court  below  in  the  case 
at  bar,  it  is  apparent  that  neither  the  Bartow  nor  the  Clement 
case,  in  view  of  the  Cochran  case,  can  be  considered  as  per- 
suasive. The  Cochran  case,  however,  it  is  urged  should  not 
be  treated  as  authority,  because  it  does  not  appear  that  any 
question  was  raised  concerning  the  construction  of  the  statute 
in  the  particular  now  controverted,  but  that  the  meaning 


240  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

of  the  statute  was  taken  for  granted,  and  hence  the  mere 
assumption  which  was  indulged  in  when  deciding  the  Cochran 
case  should  not  now  prevent  a  determination  of  the  significance 
of  the  language  of  the  statute.  As  the  report  of  the  Cochran 
case  indicates  that  the  premise  relied  on  is  true,  we  come  to 
consider  the  meaning  of  the  section  as  an  original  question. 

The  report  to  the  Comptroller,  in  which  the  entries  were 
charged  to  have  been  false,  and  to  have  been  made  with  the 
intent  to  deceive  that  oflScer  as  an  agent  appointed  to  ex- 
amine, etc.,  was  clearly  one  made  imder  the  provisions  of 
Rev.  Stat.,  §  5211,  which  reads  as  follows: 

"Every  association  shall  make  to  the  Comptroller  of  the 
Currency  not  less  than  five  reports  during  each  year,  accord- 
ing to  the  form  which  may  be  prescribed  by  him,  verified 
by  the  oath  or  aflSrmation  of  the  president  or  cashier  of  such 
association,  and  attested  by  the  signature  of  at  least  three 
of  the  directors.  Each  such  report  shall  exhibit,  in  detail 
and  under  appropriate .  heads,  the  resources  and  liabilities 
of  the  association  at  the  close  of  business  of  any  past  day 
by  him  specified;  and  shall  be  transmitted  to  the  Comptroller 
within  five  days  after  the  receipt  of  a  request  or  requisition 
therefor  from  him." 

The  authority  conferred  by  this  section  upon  the  Comp- 
troller is  but  one  among  the  comprehensive  powers  with 
which  he  is  endowed  by  the  statute  for  the  purpose  of  exam- 
ining and  supervising  the  operations  of  national  banks,  pre- 
venting and  detecting  violations  of  law  on  their  part,  ap- 
pointing receivers  in  case  of  necessity,  etc.  From  the  nature 
of  these  powers  it  would  seem  clear  that  the  Comptroller  is 
an  officer  or  agent  of  the  United  States,  expressly  as  well 
as  impliedly  clothed  with  authority  to  examine  into  the 
affairs  of  national  banking  associations,  and  therefore  a  false 
entry  made  in  a  report  to  him  is  directly  embraced  in  the 
provision  of  Rev.  Stat.,  §  5209.  But  it  is  argued  while  this 
may  be  abstractly  true,  it  is  not  so  when  the  provision  of 
Rev.  Stat.,  §  5240  is  considered,  conferring  power  upon  the 


UNITED  STATES  v.  CORBETT.  241 

215  U.  S.  Opinion  of  the  Court. 

Comptroller,  with  the  approval  of  the  Secretary  of  the  Treas- 
ury, to  appoint  suitable  agents  to  make  an  examination  of 
the  affairs  of  every  national  banking  association.  Because  of 
this  power  the  contention  is  that  the  words  "any  agent  ap- 
pointed to  examine  the  affairs  of  any  such  bank"  should  be 
construed  as  embracing  only  the  subordinate  agents  whom 
the  Comptroller  is  authorized  to  appoint.  But  to  so  hold,  we 
think,  would  do  violence  to  the  text  of  §  5209,  and  conflict 
with  its  context,  and  would,  besides,  frustrate  the  plain  pur- 
pose which  the  section  as  a  whole  was  intended  to  accom- 
plish, especially  if  it  be  considered  in  the  light  of  cognate 
provisions  of  the  statute.  We  say  the  first,  because  the 
particular  words  of  the  text  relied  upon,  "  any  agent  appointed 
to  examine,"  etc.,  are  all-embracing,  and  cannot  reasonably 
be  held  to  exclude  the  ComptroDer,  the  principal  agent  en- 
dowed by  the  statute  with  the  power  to  examine  national 
banks.  Indeed,  the  words  "any  agent"  would  seem  to  have 
been  used  in  the  broadest  sense  for  the  express  purpose  of 
excluding  the  possibility  of  the  contention  now  made.  Nor 
does  the  fact  that  the  section  of  the  Revised  Statutes  em- 
powering the  Comptroller  to  call  for  reports  from  national 
banks  is  contained  in  a  section  subsequent  to  the  one  which 
embodies  the  provision  authorizing  the  Comptroller  to  ap- 
point agents  to  examine,  give  force  to  the  contention  that 
the  Comptroller  cannot  be  embraced  by  the  words  "any 
agent."  The  provision  in  question  was  originally  contained 
in  the  act  of  1864,  which  moreover  forbade  certain  acts  in 
the  transaction  of  the  affairs  of  national  banks,  empowered 
the  Comptroller  of  the  Currency  to  exercise  supervisory 
power,  to  call  for  reports  from  the  associations  and  to  bring 
into  play  other  authority  substantially  as  found  in  the  law 
as  now  existing.  This  was  followed  by  the  provision  giving 
to  the  Comptroller  the  right  to  appoint  subordinate  exam- 
iners, the  whole  being  concluded  by  a  section  containing  pro- 
visions which  are  now  substantially  embodied  in  Rev.  Stat., 
§5209.  It  is  apparent  that  such  provisions  embraced  acts 
VOL.  ccxv — 16 


242  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

forbidden  and  matters  regulated  by  previous  sections,  in- 
cluding the  reports  to  be  made  by  the  associations  to  the 
Comptroller  and  the  examination  of  books  and  papers  by  the 
agents  appointed  by  the  Comptroller.  The  intention  cannot 
be  reasonably  imputed  of  punishing  an  intent  to  deceive  a 
subordinate  of  the  Comptroller  by  means  of  false  entries  in 
a  report  required  to  be  made  directly  to  the  Comptroller  and 
for  his  information  and  guidance,  and  yet  at  the  same  time 
not  to  punish  the  intent  to  deceive  the  very  officer  to  whom 
the  report  was  to  be  made.  Including  the  reports  to  be  made 
to  the  Comptroller  in  the  comprehensive  grouping  of  the 
section  excludes  the  conception  that  such  officer  was  not 
considered  as  embraced  in  the  words  "any  officer  appointed," 
etc.  But  the  argument  is  that,  however  cogent  may  be  the 
considerations  just  stated,  they  are  here  inapplicable,  because 
the  statute  is  a  criminal  one,  requiring  to  be  strictly  con- 
strued. The  principle  is  elementary,  but  the  application 
here  sought  to  be  made  is  a  mistaken  one.  The  rule  of  strict 
construction  does  not  require  that  the  narrowest  technical 
meaning  be  given  to  the  words  employed  in  a  criminal  statute 
in  disregard  of  their  context  and  in  frustration  of  the  obvious 
legislative  intent.  United  States  v.  Hartwell,  6  Wall.  385. 
In  that  case,  answering  the  contention  that  penal  laws  are 
to  be  construed  strictly,  the  court  said  (p.  395) : 

"The  object  in  construing  penal,  as  well  as  other  statutes, 
is  to  ascertain  the  legislative  intent.  .  .  .  The  words 
must  not  be  narrowed  to  the  exclusion  of  what  the  legislature 
intended  to  embrace;  but  that  intention  must  be  gathered 
from  the'  words,  and  they  must  be  such  as  to  leave  no  room 
for  a  reasonable  doubt  upon  the  subject.  .  .  .  The  rule 
of  strict  construction  is  not  violated  by  permitting  the  words 
of  the  statute  to  have  their  full  meaning,  or  the  more  extended 
of  two  meanings,  as  the  wider  popular  instead  of  the  more 
narrow  technical  one ;  but  the  words  should  be  taken  in  such 
a  sense,  bent  neither  one  way  nor  the  other,  as  wiD  best  mani- 
fest the  legislative  intent." 


UNITED  STATES  v.  CORBETT.  243 

215  U.  S.  Opinion  of  the  Court. 

It  is  to  be  observed  that  the  rule  thus  stated  affords  no 
groimd  for  extending  a  penal  statute  beyond  its  plain  mean- 
ing. But  it  inculcates  that  a  meaning  which  is  within  the 
text  and  within  its  clear  intent  is  not  to  be  departed  from 
because,  by  resorting  to  a  narrow  and  technical  interpretation 
of  particular  words,  the  plain  meaning  may  be  distorted  and 
the  obvious  purpose  of  the  law  be  frustrated.  BoUes  v. 
OuiiTig  Co,,  175  U.  S.  262,  265,  and  especially  United  States 
V.  Union  Supply  Company,  decided  this  term,  ante,  p.  50. 

Indeed,  the  aptness  of  the  application  of  the  principle 
just  stated  to  the  case  in  hand  is  well  illustrated  by  the  fol- 
lowing considerations.  If  by  distorting  the  rule  of  strict 
construction  we  were  to  construe  the  words  of  the  statute, 
"any  agent  appointed  to  examine,"  so  as  to  exclude  the 
Comptroller  of  the  Currency,  the  principal  agent  appointed 
for  such  purpose,  by  the  same  method  we  should  be  com- 
pelled to  adopt  the  reasoning  of  the  court  below  and  to 
narrow  the  statute  so  as  to  exclude  the  intent  to  deceive  by 
false  entries  in  the  report,  an  agent  to  whom  the  report  was 
not  to  be  made  and  who  might  not  be  called  upon  to  examine 
the  same,  thus,  in  effect,  as  to  intent  to  deceive  any  agent, 
destroying  the  statute.  And  this  impossible  conclusion  at 
once  serves  to  point  out  the  correctness  of  the  interpretation 
of  the  statute  assumed  in  the  Cochran  case,  that  the  intent  to 
deceive,  for  which  the  statute  provides,  is  an  intent  to  de- 
ceive the  official  agents  concerned  in  overseeing  the  bank 
and  supervising  its  operation  and  the  conduct  of  its  busi- 
ness, including,  of  necessity,  the  Comptroller  of  the  Currency 
and  the  subordinate  agents  or  examiners  whom  the  statute 
authorized  him  to  appoint. 

2.  The  demurrer. 

Where  intent  is  an  essential  ingredient  of  a  crime  it  is 
settled  that  such  intent  may  be  charged  in  general  terms  and 
that  the  existence  of  the  intent  becomes,  therefore,  a  ques- 
tion to  be  determined  by  the  jury  upon  a  consideration  of 
all  the  facts  and  circumstances  of  the  case.    Evans  v.  United 


244  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

States,  153  U.  S.  584.  It  is,  of  course,  to  be  conceded  that 
where  the  facts  charged  to  have  been  done  with  criminal 
intent  are  of  such  a  nature  that  on  the  face  of  tHe  indictment 
it  must  result  as  a  matter  of  law  that  the  criminal  intent 
could  not  under  any  possible  circumstances  have  existed, 
the  charge  of  such  intent,  in  general  terms,  would  raise  no 
issue  of  fact  proper  to  go  to  a  jury.  It  was  upon  the  concep- 
tion that  the  facts  alleged  in  the  indictment  under  considera- 
tion excluded  the  possibility  under  any  circumstances  of  the 
existence  of  the  particular  criminal  intent  charged,  that  the 
court  below  was  led  to  sustain  the  demurrer.  The  court 
said: 

''The  indictment  also  charges  that  the  entries  were  made 
with  intent  to  injure  and  defraud  the  bank  itself,  but  how 
this  could  be  does  not  appear.  It  is  barely  possible  that 
some  harm  might  indirectly  have  come  to  the  bank  by  the 
publication  of  the  false  report  in  the  vicinity  of  the  place 
where  the  bank  was  located,  but  this  possibility  is  not  suffi- 
cient to  show  the  definite  intent  shown  by  the  statute.  The 
report  must  have  been  made  with  the  purpose  on  the  part 
of  those  signing  it  to  injure  and  defraud  the  bank.  The  re- 
port could  not  possibly  change  the  actual  condition  of  the 
bank,  and  a  false  report  showing  a  better  condition  than  in 
fact  existed  might  as  readily  be  a  benefit  to  the  bank  as  a 
detriment.  At  all  events,  the  detriment  would  be  merely 
speculative,  insufficient  to  afford  proof  of  a  positive  intent 
to  injure  and  defraud  the  bank." 

But  to  these  views  we  cannot  give  our  assent.  Because 
the  false  entries  in  the  report  showed  the  bank  to  be  in  a  more 
favorable  condition  than  it  was  in  truth  did  not  justify  the 
conclusion  that  the  entries  in  the  report  could  under  no  cir- 
cumstances have  been  made  with  the  intent  to  injure  the 
bank,  unless  it  be  true  to  say  that  it  must  follow,  as  a  matter 
of  law,  that  to  falsely  state  in  an  official  report  a  bank  to  be 
in  a  better  condition  than  it  really  is,  under  every  and  all 
circumstances  is  to  benefit  and  not  to  injure  the  bank.    But 


UNITED  STATES  v,  CORBETT.  246 

215  U.  S.  Opinion  of  the  Court. 

this  view  would  do  violence  to  the  statute,  which  exacts 
truthful  reports  upon  the  conception  that  the  knowledge 
by  the  oflScials  of  the  Government  of  the  true  condition  of 
the  bank  is  conducive  to  the  safeguarding  of  its  interests 
and  its  protection  from  injury  and  wrong.  It  was  undoubt- 
edly within  the  power  of  the  Comptroller  of  the  Currency, 
if  the  bank  was  out  of  line,  or  if  its  affairs  were  in  a  disordered 
or  precarious  condition,  or  if  its  officers  had  embarked  in 
transactions  calculated  to  injuriously  affect  the  financial 
condition  of  the  bank,  to  apply  a  corrective,  and  thus  save 
the  bank  from  injury  and  future  loss.  Certainly,  as  a  matter 
of  law,  it  cannot  be  held,  although  such  transactions  were 
concealed  in  a  report  made  to  the  Comptroller  by  false  state- 
ments exhibiting  a  more  favorable  condition  of  the  bank 
than  would  have  appeared  if  the  truth  had  been  stated,  that 
no  intent  to  injure  the  bank  could  possibly  be  imputed,  even 
although  the  necessary  effect  of  the  false  statement  was  to 
prevent  the  ComptroDer  from  exerting  the  powers  conferred 
upon  him  by  law  for  the  protection  of  the  bank  from  injury. 
And  these  considerations  also  effectually  dispose  of  the 
theory  that  the  acts  charged  to  have  been  falsely  reported, 
in  and  of  themselves,  were  of  such  a  character  as  to  exclude 
the  possibility  of  a  criminal  intent  to  injure  the  bank.  The 
counts  charged  false  entries  as  to  the  amount  of  bad  debts 
due  the  bank,  as  to  the  suspended  paper  held  by  the  bank, 
as  to  the  amoimt  due  the  bank  by  its  president  as  indorser, 
guarantor  or  otherwise,  and  as  to  the  assets  of  the  bank, 
by  reporting  that  it  owned  various  pieces  of  real  estate  which 
it  really  only  held  as  security.  We  are  of  opinion  that  the 
alleged  false  statements  did  not  so  exclude  the  poasibility 
of  an  intention  to  injure  the  bank  as  to  justify  so  declaring 
as  a  matter  of  law,  and  that  the  case  should  have  been  sub- 
mitted to  a  jury  to  determine  the  question  of  intent  in  the 
light  of  all  the  facts  and  circumstances  existing  at  the  time 
of  the  making  of  the  alleged  false  entries. 

Reversed, 


246  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

Mr.  Justice  McKenna  and  Mr.  Justice  Dat  do  not  think 
the  Comptroller  is  within  the  words  ''any  agent,"  and  dis- 
sent from  that  ruling.    In  other  respects  they  concur. 


■•■ 


LATHROP,  SHEA  &  HENWOOD  COMPANY  v,  INTE- 
RIOR CONSTRUCTION  AND  IMPROVEMENT  COM- 
PANY. 

ERROR  TO  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR  THE 

WESTERN  DISTRICT  OF  NEW  YORK 

No.  2.    Argued  October  22,  1909.— Decided  December  6,  1909. 

Where  plaintiff  in  good  faith  insists  on  the  joint  liability  of  all  the 
defendants  until  the  close  of  the  trial,  the  dismissal  of  the  complaint 
on  the  merits  as  to  the  defendants  who  are  citizens  of  plaintiff's 
State  does  not  operate  to  make  the  cause  then  removable  as  to  non- 
resident defendants  and  to  prevent  the  plaintiff  from  taking  a  verdict 
against  the  defendants  who  might  have  removed  the  cause  had  they 
been  sued  alone,  or  if  there  had  originally  been  a  separable  contro- 
versy as  to  them. 

The  facts,  which  involve  the  validity  of  the  removal  of  a 
cause  to  the  Federal  court,  are  stated  in  the  opinion. 

Mr.  darence  M.  BushneU  for  plaintiff  in  error. 

Mr.  C.  Walter  Ariz  for  defendant  in  error. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

The  parties  were  respectively  plaintiff  and  defendant  in 
the  court  below,  and  we  shall  so  designate  them. 

The  plaintiff  brought  suit  against  the  defendant  and  the 
Kttsburg,  Shawmont  and  Northern  Railroad  Company  in 
the  Supreme  Court  of  Erie  County,  New  York,  for  the  sum 


LATHROP,  SHEA  &  CO.  v.  INTERIOR  CONSTR'N  CO.  247 
215  U.  S.  Opinion  of  the  Court. 

of  $43,038.88,  upon  a  contract  entered  into  between  the  de- 
fendant, the  Interior  Construction  and  Improvement  Com- 
pany, and  the  plaintiff,  by  which  the  Construction  Company 
agreed  to  construct  certain  portions  in  Pennsylvania  and  New 
York  of  the  line  of  the  railroad  company,  and  for  materials 
and  the  use  of  certain  articles  by  the  railroad.  It  is  alleged 
in  the  petition  of  the  plaintiff  that  the  railroad  company  was 
organized  by  the  consolidation  of  other  railroad  companies, 
and  for  the  purpose  of  carrying  out  the  plans  of  such  consoli- 
dation undertook  the  construction  of  a  railroad  from  certain 
points  in  Pennsylvania  to  the  village  of  Angelica  in  the  State 
of  New  York.  That  in  pursuance  of  this  purpose  the  railroad 
company  entered  into  a  contract  with  the  Construction  Com- 
pany, and  in  payment  for  the  construction  of  the  railroad 
agreed  to  issue  and  did  issue  to  the  company  its  stocks  and 
bonds,  which  were  largely  in  excess  of  cost  of  construction. 
That  the  Construction  Company  was  organized  solely  for  the 
purpose  of  building  the  railroad  and  to  secure  to  the  promoters 
and  organizers  thereof  the  profits  to  be  made  by  the  construc- 
tion of  the  railroad  and  the  manipulation  of  securities.  That 
the  oflScers,  directors  and  owners  of  the  majority  of  the  capital 
stock  of  the  railroad  had  like  relation  to  the  Construction 
Company  and  the  management  of  the  latter  was  controlled 
by  them.  And  it  is  averred  that  the  Construction  Company 
was  the  agent  and  representative  of  the  railroad  company, 
and  that  the  latter  became  and  is  responsible  and  liable  for 
the  acts  and  obligations  of  the  Construction  Company.  Due 
performance  by  plaintiff  of  its  contract  is  alleged. 

It  is  further  alleged  that  the  railroad  company  is  a  New 
York  corporation  and  the  Construction  Company  is  a  New 
Jersey  corporation. 

There  was  personal  service  of  the  summons  on  the  rail- 
road company  on  the  twenty-fourth  of  October,  1904.  That 
company  appeared  and  answered.  The  service  upon  the 
Construction  Company  was  made  on  the  sixteenth  of  Novem- 
ber, 1904,  by  serving  the  summons  on  the  secretary  of  state 


248  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

of  the  State  of  New  York.  The  Construction  Company  made 
a  motion  to  set  aside  the  service  of  summons  on  the  ground 
that  it  was  irregular  and  void.  The  company  made  no  other 
appearance.  The  motion  was  denied,  and  appeal  was  taken 
to  the  Appellate  Division  of  the  court.  That  court  afiirmed 
the  ruling,  and  denied  leave  to  appeal  to  the  Court  of  Appeals. 
The  Construction  Company's  time  to  answer  was  extended 
to  February  6,  1905,  and,  upon  motion  of  the  company,  the 
case  was  removed  to  the  United  States  Circuit  Court  on  the 
ground  of  a  separable  controversy,  but  was  subsequently  re- 
manded upon  motion  of  the  plaintiff.  The  motion  to  set 
aside  the  service  of  summons  was  denied.  Lathrop,  Shea  & 
Henwqod  Co.  v.  Interior  Construction  &  Improvement  Co., 
135  Fed.  Rep.  619.  Upon  the  return  of  the  case  to  the  state 
court,  a  motion  was  made  by  the  Construction  Company  to 
extend  its  time  to  appear  and  answer  in  the  action  until 
twenty  days  after  the  determination  of  the  motion  then  pend- 
ing, made  in  behalf  of  the  railroad  company,  to  compel  the 
plaintiff  to  elect  which  defendant  it  would  proceed  against, 
to  the  exclusion  of  the  other.  The  motion  was  denied,  also 
that  made  by  the  railroad  company.  The  referee  to  whom 
the  issues  raised  by  the  railroad  company  had  been  referred, 
to  hear  and  determine,  reported  dismissing  the  complaint 
as  to  that  company,  and  judgment  thereon  was  entered  on 
the  twenty-sixth  of  October,  1905.  The  judgment  was  af- 
firmed by  the  Appellate  Division  of  the  Supreme  Court.  But, 
pending  the  appeal,  upon  motion  of  the  Construction  Com- 
pany the  case  was  removed  to  the  Circuit  Court,  but  that 
court  remanded  the  case,  sajnng  that  "until  the  determina- 
tion of  the  appeal  by  the  co-defendant,  in  the  absence  of  fraud 
or  improper  joinder  of  defendants  for  the  purpose  of  interfer- 
ing with  or  obstructing  the  Construction  Company's  right  of 
removal,  it  is  not  thought  that  a  separable  controversy  ex- 
ists." Lathrop,  Shea  &  Henwood  Co,  v.  Interior  Construction 
cfe  Improvement  Co.,  143  Fed.  Rep.  687. 
On  the  twenty-third  of  September,  1905,  an  affidavit  of  the 


LATHROP,  SHEA  &  CO.  v.  INTERIOR  CONSTR'N  CO.  249 
215  U.  S.  Opinion  of  the  Court. 

default  of  the  Construction  Company  having  been  filed,  an 
order  was  made  in  the  Supreme  Court,  reciting  the  fact,  and 
the  facts  showing  such  default,  and  appointing  a  referee  "to 
take  proofs  of  the  cause  of  action  set  forth  in  the  plaintiff's 
complaint."  The  referee  reported  that  there  was  due  plain- 
tiff the  sum  of  $47,323.91.  The  report  was  confirmed  and 
judgment  entered  for  that  amoimt. 

Subsequently,  the  Appellate  Division  having  sustained  the 
judgment  dismissing  the  action  as  to  the  railroad  company, 
the  case  was  again,  on  the  motion  of  the  company,  removed 
to  the  Circuit  Court  and  a  motion  made  in  that  court  to  set 
aside  the  service  of  summons  on  the  Construction  Company 
and  to  vacate  the  judgment.  Concurrently  with  that  motion 
plaintiff  moved  to  remand  the  case  to  the  state  court.  The 
motion  of  the  Construction  Company  was  granted  and  the 
action  dismissed  for  want  of  jurisdiction  over  the  company. 
Laihrop,  Shea  &  Henwood  Co,  v.  Interior  Construction  & 
Improvement  Co.,  150  Fed.  Rep.  666. 

The  motion  was  granted  on  the  ground  that  the  facts 
showed  that  the  company  had  ceased  to  do  business  in  the 
State  and  held  no  property  therein. 

It  will  be  seen  that  a  question  of  jurisdiction  alone  is  pre- 
sented, the  Circuit  Court  certifying  "that  no  evidence  was 
introduced  upon  the  hearing  of  the  motion,  the  issues  being : . 

"I.  Whether  this  court  had  obtained  jurisdiction  over  this 
defendant  by  the  service  of  a  summons  upon  the  secretary 
of  state  of  the  State  of  New  York  as  provided  by  section  16 
of  the  General  Corporation  Law  of  said  State  of  New  York. 

"II.  Whether  the  proceedings  in  and  the  decisions  of  the 
courts  of  the  State  of  New  York  construing  said  corporation 
law  were  controlling  upon  this  court. 

"III.  Whether  the  proceedings  taken  by  said  defendant 
in  said  state  court  are  res  adjudiccUa  upon  defendant." 

But  there  is  a  question  of  jurisdiction  paramount  to  that 
passed  on  by  the  Circuit  Court.  It  will  be  observed  that  the 
action  against  the  railroad  company  was  not  dismissed  by 


250  OCTOBER  TERM,  1909. 

Opinkm  of  the  GcNirt.  215  U.S. 

plaintiff,  but,  against  its  contention,  by  the  Supreme  Court 
of  the  State,  whose  judgment  was  affirmed,  also  against  its 
contention,  by  the  Appellate  Division  of  that  court.  This 
did  not  take  jurisdiction  from  the  state  court  to  proceed 
against  the  Construction  Company  nor  make  the  judgment 
against  it  invalid. 

It  was  held  in  Powers  v.  C.  <fc  0.  Ry.,  169  U.  S.  92,  that  a 
case  may  become  removable  after  the  time  prescribed  by 
statute;  upon  the  ground  of  a'  separate  controversy  upon  the 
subsequent  discontinuance  of  the  action  by  the  plaintiff 
against  the  defendants,  citizens  of  the  same  State  with  the 
plaintiff.  In  Whitamb  v.  Smithsan,  175  U.  S.  635,  637,  the 
Powers  case  was  commented  on,  and  a  different  effect  was 
ascribed  to  a  ruUng  of  the  court  dismissing  the  action  as  to 
one  of  the  defendants  than  to  a  discontinuance  by  the  volim- 
tary  act  of  the  plaintiff.  The  action  was  against  Whitcomb 
and  another  who  were  receivers  of  the  Wisconsin  Central 
Company  and  the  Chicago  Great  Western  Railway  Company 
for  personal  injuries  received  by  Smithson  while  serving  the 
Chicago  Great  Western  Railway  Company  as  a  locomotive 
fireman  in  a  collision  between  the  locomotive  on  which  he 
was  at  work  and  another  locomotive  operated  by  the  re- 
ceivers appointed  by  United  States  Circuit  Court.  The  case 
came  to  trial,  and  at  the  close  of  the  testimony  counsel  for 
the  Chicago  Great  Western  Railway  Company  moved  that 
the  jury  be  ''instructed  to  return  a  verdict  in  behalf  of  that 
defendant,"  which  motion  the  court  granted.  An  applica- 
tion was  then  made  by  the  receivers  to  remove  the  case  to  the 
Circuit  Court  of  the  United  States,  which  was  denied.  The 
court  instructed  the  jury  to  return  a  verdict  for  the  railway 
company,  which  was  done,  and  thereupon  the  case  went  to 
the  jury,  who  returned  a  verdict  against  the  receivers,  upon 
which  judgment  was  entered.  The  judgment  was  affirmed 
by  the  Supreme  Court  of  Minnesota,  to  which  a  writ  of  error 
was  issued  from  this  court.  Passing  on  motions  to  dismiss  or 
affirm  and  answering  the  contention  of  the  receivers  that  they 


LATHROP,  SHEA  &  CO.  v,  INTERIOR  CONSTR'N  CO.  251 
215  U.  S.  Opinion  of  the  Court. 

acquired  the  right  of  removal  as  though  they  were  the  sole 
defendants,  when  the  court  directed  a  verdict  in  favor  of  the 
railway  company,  this  court  said  by  the  Chief  Justice:  "This 
might  have  been  so  if  when  the  cause  was  called  for  trial  in 
the  state  court,  plaintiff  had  discontinued  his  action  against 
the  railway  company,  and  thereby  elected  to  prosecute  it 
against  the  receivers  solely,  instead  of  prosecuting  it  on  the 
joint  cause  of  action  set  up  in  the  complaint  against  all  of  the 
defendants.  Powers  v.  Chesapeake  &  Ohio  Railway,  169  U.  S. 
92.  But  that  is  not  this  case.  The  joint  liability  was  insisted 
on  here  to  the  close  of  the  trial,  and  the  non-liability  of  the 
railway  company  was  ruled  in  invitum.  .  .  .  This  was 
a  ruling  on  the  merits,  and  not  a  ruling  on  the  question  of 
jurisdiction.  It  was  adverse  to  plaintiff,  and  without  his 
assent,  and  the  trial  court  rightly  held  that  it  did  not  operate 
to  make  the  cause  then  removable,  and  thereby  to  enable 
the  other  defendants  to  prevent  plaintiff  from  taking  a  ver- 
dict against  them." 

The  Whitcomb  case  and  the  Powers  case  are  conmiented  on 
and  impliedly  approved  in  Chesapeake  &  Ohio  Ry.  Co.  v. 
Dixon,  179  U.  S.  131,  138.  And  again  in  Kansas  City  Svbur- 
ban  Belt  Ry,  Co.  v.  Herman,  187  U.  S.  63;  FrUden  v.  Boatmen's 
Bank,  212  U.  S.  364,  372.  See  also  Alabama  Great  SoiUhem 
Ry.  v.  Thompson,  200  U.  S.  206. 

It  follows  from  these  views  that  the  order  of  the  Circuit 
Court  setting  aside  the  service  of  the  summons  on  the  Con- 
struction Company  and  vacating  the  judgment  against  it  and 
dismissing  the  action  must  be 

Reversed  and  the  caiLse  remanded,  with  directions  to  grant  the 
motion  of  plaintiff  to  remand  the  case  to  the  Supreme  Court 
of  the  Stale  of  New  York.   So  ordered. 


252  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 


VIRGINIA-CAROLINA    CHEMICAL    COMPANY   v. 

KIRVEN. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  SOUTH 

CAROLINA. 

No.  18.    Argued  November  2,  1909.-— Decided  December  6,  1909. 

The  claim  of  plaintiff  in  error  that  proper  and  full  credit  was  not 
given  to  a  judgment  in  the  Federal  court,  if  seasonably  made, 
raises  a  Federal  question  and  if  the  decision  of  the  state  court  is 
in  effect  against  such  claim  this  court  has  jurisdiction. 

While  the  bar  of  a  judgment  in  another  action  for  the  same  claim  or 
demand  between  the  same  parties  extends  to  not  only  what  was, 
but  what  mig^t  have  been,  pleaded  or  litigated  in  the  first  action, 
if  the  second  action  is  upon  a  different  claim  or  demand  the  bar 
of  the  first  judgment  is  limited  to  that  which  was  actually  litigated. 

Under  §  914,  Rev.  Stat.,  requiring  the  practice  in  the  Federal  courts 
to  conform  as  near  as  may  be  to  the  practice  in  the  state  courts, 
the  defendant  in  an  action  in  the  United  States  Circuit  Court  in 
South  Carolina  is  not  required  to  plead  all  counterclaims  and  offsets 
as  the  state  courts  have  not  so  construed  the  provisions  of  §§  170, 
171  of  the   Code  of  Procedure  of  that  State. 

When  the  question  is  the  effect  which  should  have  been  given  by  the 
state  court  to  a  judgment  of  the  United  States  Circuit  Court,  this 
court  is  not  concerned  with  the  extent  to  which  the  state  court 
may  have  subsequently  modified  its  view  if  it  has  not  questioned 
the  correctness  of  its  decision  in  the  case  at  bar. 

77  So.  Car.  493,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  P.  A.  WiUcox  and  Mr.  Frederic  D.  McKenney,  with 
whom  Mr.  F.  L.  WiUcox  and  Mr.  Henry  E.  Davis  were  on 
the  brief,  for  plaintifif  in  error: 

The  question  litigated  in  the  present  suit  was  rendered 
res  judicata  by  the  judgment  in  the  Federal  coiut  as  it  was 
matter  that  should  have  been  set  up  as  counterclaim.  Such 
is  the  rule  in  South  Carolina,  §§  170,  171,  Code  of  Procedure, 
and  under  §914,  Rev.  Stat.,  the  practice  of  the  Federal 


VIRGINIA-CAROLINA  CHEMICAL  CO.  v.  KIRVEN.  253 
215  U.  S.  Argument  for  Plaintiff  in  Error. 

courts  must  conform  thereto.  See  Simonton,  Fed.  Courts, 
§§  106,  152,  157;  Haygood  v.  Boney,  43  S.  Car.  63;  Schunk 
V.  Moline,  147  U.  S.  500;  Pickham  v.  Manufacturing  Co.,  77 
Fed.  Rep.  663;  Turner  v.  Association,  101  Fed.  Rep.  308; 
Partridge  v.  Insurance  Co.,  15  WaJL  573;  1  Van  Fleet  on 
Former  Adjudication,  §§  168,  172;  23  Cyc.  1202;  Black  on 
Judgments,  §767. 

Where  a  party  has  an  opportunity  to  litigate  an  issue  in 
defense  and  fails  to  do  so  the  judgment  shuts  off  that  de- 
fense, and  if  the  same  issues  are  being  litigated  in  two  courts 
the  first  final  judgment  will  render  the  issues  res  judicata  in 
the  other  court.  Boatmen's  Bank  v.  Fritzlein,  135  Fed.  Rep. 
650;  24  Am.  &  Eng.  Ency.,  2d  ed.,  833;  17  Ency.  of  P.  &  P. 
265. 

In  determining  the  question  of  res  judicata  of  an  issue 
by  judgment  in  the  Federal  court  this  coiut  will  be  governed 
by  its  own  decisions  and  not  by  those  of  the  courts  of  the 
State.  The  right  given  by  a  judgment  in  the  Federal  court 
is  one  arising  under  the  Constitution  and  cannot  be  taken 
away  by  the  State,  and  this  court  has  jurisdiction.  Crescent 
City  Co.  V.  Butchers'  Union,  120  U.  S.  141;  Pittsburg  R.  R.  Co. 
V.  Long  Island  Trust  Co.,  172  U.  S.  493;  Dowdl  v.  Applegate, 
152  U.  S.  327;  Werlein  v.  New  Orleans,  177  U.  S.  390;  Na- 
tional  Foundry  v.  Supply  Co.,  183  U.  S.  216;  Cromwell  v.  Sac 
County,  94  U.  S.  351. 

The  estoppel  resulting  from  the  thing  adjudged  does  not 
depend  on  whether  there  is  the  same  demand  but  on  whether 
the  second  demand  has  been  previously  concluded  by  judg- 
ment between  the  same  parties.  New  Orleans  v.  Citizens' 
Bank,  167  U.  S.  371,  396;  Supply  Co.  v.  MobUe,  186  U.  S. 
212,  217;  Bank  v.  Frankfort,  191  U.  S.  499;  Fayerweather  y. 
Ritch,  195  U.  S.  276,  301 ;  Gunter  v.  Atlantic  Coast  Line,  200 
U.  S.  273,  290;  United  States  v.  California  &  Oregon  Land 
Co.,  192  U.  S.  355;  Northern  Pac.  Ry.  Co.  v.  Slaght,  205  U.  S. 
122;  Stockton  v.  Ford,  18  How.  418;  Northern  Pacific  Ry.  Co. 
v.  United  States,  168  U.  S.  1;  and  see  also  Price  v.  Dewey,  11 


254  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  U.  S. 

Fed.  Rep.  104;  Nemeity  v.  Naylar,  100  N.  Y.  562;  Reichert 
V.  Krass,  41  N.  E.  Rep.  835;  Blmr  v.  BarOett,  lb  N.  Y.  150; 
Dunham  v.  Bower,  77  N.  Y.  76;  Gibson  v.  Bingham,  43  Ver- 
mont, 410;  Rew  v.  School  District,  106  Am.  St.  Rep.  282. 

In  reaching  its  judgment  upholding  the  validity  of  the 
note  the  Federal  court  necessarily  determined  there  was  no 
failure  of  consideration,  and  that  is  the  foundation  of  the 
action  in  the  state  court;  prior  to  this  case  the  decisions  of 
the  state  court  supported  the  principle  contended  for.  Wil- 
Umghliy  v.  Railroad  Co.,  52  S.  Car.  175;  Ryan  v.  Assodalian, 
50  S.  Car.  187. 

This  action  cannot  be  sustained  without  depriving  plain- 
tiff in  error  of  the  benefit  of  a  judgment  of  the  Federal  court. 

In  further  support  of  the  contentions  of  plaintiff  in  error 
see  Mooklar  v.  Lewis,  40  Indiana,  1;  Shepherd  v.  Temple,  3 
N.  H.  455,  and  the  decision  of  the  Supreme  Court  of  South 
Carolina  rendered  since  this  case  was  decided.  Greenvxfod 
Drug  Co,  v.  Bromxmia  Co,,  81  S.  Car.  516. 

Mr,  Charles  A .  Douglas,  with  whom  Mr.  W.  F.  Stever^on  and 
Mr.  E.  0.  Woods  were  on  the  brief,  for  defendant  in  error: 

This  court  is  without  jurisdiction.  The  point  that  full 
faith  and  credit  was  not  given  to  the  judgment  of  the  Federal 
court  does  not  appear  in  the  record  and  a  general  statement 
is  not  sufficient,  and  questions  other  than  Federal  are  involved. 

The  first  judgment  is  not  res  judicata  in  regard  to  the 
question  in  the  second  suit.  The  rule  requiring  a  party  to 
assert  all  defenses  does  not  apply  to  defendant's  claims 
against  plaintiff  by  way  of  counterclaims  and  set-off.  1  Van 
Fleet,  §§168-172;  Black  on  Judgments,  §768;  Davis  v. 
Hedges,  L.  R.  6  Q.  B.  687;  Kennedy  v.  Davisson,  33  S.  E.  Rep. 
292;  Riley  v.  Hole,  33  N.  E.  Rep.  491;  Cmner  v.  Vamey,  10 
Gray,  231;  Myrian  v.  Woodcock,  104  Massachusetts,  326; 
Gilmare  v.  Williams,  38  N.  E.  Rep.  976;  19  Ency.  P.  &  P. 
731;  24  Am.  &  Eng.  Ency.  785.  The  questions  of  failure  of 
consideration  and  damages  to  crop  were  not  involved  in  the 


VIRGINIA-CAROLINA  CHEMICAL  CO.  v.  KIRVEN.   255 
215  U.  S.  Opinion  of  the  Court. 

first  suit  and  the  judgment  was  not  res  judicata  in  regard  to 
those  issues. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

This  case  involves  the  question  as  to  whether  the  state 
courts  gave  due  force  and  effect  to  a  judgment  of  the  Circuit 
Court  of  the  United  States  for  the  District  of  South  Carolina 
in  an  action  brought  by  plaintiff  in  error  against  the  defend- 
ant in  error. 

The  action  in  the  case  at  bar  was  brought  by  defendant  in 
error,  whom  we  shall  call  Kirven,  against  plaintiff  in  error, 
whom  we  shall  caD  the  Chemical  Company,  for  damages  re- 
sulting from  the  defective  manufacture  of  certain  fertilizers 
bought  by  Kirven  of  the  Chemical  Company,  through  one 
McCall,  to  whom  he  gave  his  note  for  twenty-two  hundred 
and  twenty-eight  dollars.    The  allegation  of  complainant  is: 

"That  the  said  fertilizers,  to  wit,  acid  phosphate  and  dis- 
solved bone,  had  been  manufactured  with  such  gross  negli- 
gence and  want  of  skill  that,  instead  of  being  of  advantage 
to  the  crops  to  which  they  were  applied,  they  destroyed  the 
same  in  large  part,  and  were  not  only  worthless  to  the  plain- 
tiff, but,  by  destroying  his  crops,  damaged  him  very  heavily, 
and  by  the  injury  which  was  inflicted  on  his  crop  of  cotton 
and  com  by  fertilizers  which  were  manufactured  and  sold 
for  use  upon  them,  he  was  damaged  in  the  sum  of  $1,995." 

The  Chemical  Company,  in  its  answer,  set  up,  among  other 
defenses,  the  judgment  of  the  Circuit  Court  of  the  United 
States.  The  plea  was  not  sustained  and  judgment  was  en- 
tered for  Kirven  for  the  amount  sued  for,  which  was  affirmed 
by  the  Supreme  Court  of  the  State.  Kirven  v.  Virginia- 
Cardina  Chemical  Co,,  77  S.  Car.  493. 

The  facts,  so  far  as  necessary  to  be  stated,  are  as  follows: 
The  Chemical  Company,  being  a  New  Jersey  corporation, 
brought  action  against  Kirven  in  the  Circuit  Court  of  the 
United  States  for  the  District  of  South  Carolina  on  the  note 
before  mentioned.     Kirven,  among  other  defenses,  set  up 


266  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

that  the  note  was  given  for  fertilizers,  "for  which  he  agreed 
to  pay  a  sound  price,  which  is  set  forth  in  the  note  sued  upon, 
and  were  purchased  for  the  use  of  the  defendant  himself 
and  his  tenants  and  customers  in  making  a  crop  for  the 
year  in  which  the  said  note  was  given,  but  the  said  fertilizers 
were  so  unskillfully  manipulated  and  manufactured  and 
prepared,  and  were  of  such  inferior  quality,  that  instead  of 
being  a  benefit  to  the  crops  of  defendant  and  his  tenants 
and  customers,  to  whom  he  furnished  the  same,  they  were 
deleterious  and  destructive  to  the  crops,  and  destroyed  the 
same  in  large  part,  and  there  was  an  entire  failure  of  con- 
sideration to  the  defendant  for  said  note." 

Kirven  subsequently  filed  a  supplementary  answer,  in 
which  he  omitted,  the  Chemical  Company  not  objecting, 
the  defense  above  set  out,  but  pleaded  as  a  counterclaim 
certain  proceedings  instituted  by  the  Chemical  Company 
in  North  Carolina,  in  which  it  attached  certain  cotton  belong- 
ing to  Kirven,  sold  the  same  and  "  applied  and  appropriated 
the  proceeds  to  its  own  use  and  benefit."  The  value  of  the 
cotton  and  the  amount  "so  seized  and  appropriated"  were 
alleged  to  be  twenty-four  hundred  and  fifty  dollars  ($2,450.00) . 

Kirven,  when  testifying  as  to  the  purchase  of  the  fertilizers, 
said:  "I  did  not  know  anything,  until  later  on,  there  was  a 
complete  destruction  of  my  crop."  Counsel  for  the  company 
objected  "to  the  latter  clause,  on  the  ground  that  that  whole 
question  is  taken  out  of  the  complaint."  The  objection  was 
sustained  and  the  answer  stricken  out.  The  Chemical  Com- 
pany recovered  judgment  for  nine  hundred  eleven  doUars 
and  seven  cents  ($911.07). 

A  motion  is  made  to  dismiss  the  writ  of  error,  on  the 
grounds  (1)  that  the  assignment  of  errors  in  the  Supreme 
Court  of  the  State  lacked  certainty  of  specification,  as  it  only 
stated  that  the  refusal  by  the  trial  court  to  give  proper  and 
full  credit  to  the  judgment  of  the  Circuit  Court,  "thereby 
denied  to  the  defendant  [the  Chemical  Company]  a  right 
arising  under  the  authority  of  the  United  States."    This,  it 


VIRGINIA-^JAROLINA  CHEMICAL  CO.  v.  KIRVEN.   257 

215  U.  S.  Opinion  of  the  Court. 

is  contended,  is  not  suflBcient  to  raise  a  Federal  right,  and 
the  following  cases  are  cited:  Chicago  &  N.  W.  Ry.  Co.  v. 
Chicago,  164  U.  S.  4.54;  Clarke  v.  McDade,  165  U.  S.  168; 
Miller  v.  Cornwall  R.  R.  Co,,  168  U.  S.  131 ;  Harding  v.  Illinois, 
196  U.  S.  78;  Thomas  v.  State  oflcrwa,  209  U.  S.  258. 

The  cases  are  not  applicable.  In  neither  of  them  was  the 
contention  under  the  Constitution  of  the  United  States 
identified  or  passed  upon.  In  the  case  at  bar  there  is  a 
definite  right  arising  under  the  authority  of  the  United  States 
and  the  decision  of  the  court  was  in  effect  against  it.  The 
case  falls  within  Crescent  City  &c.  Co.  v.  Butchers*  Union  &c, 
Co,,  120  U.  S.  141;  Pittsburg  &c,  Ry,  v.  Loan  &  Trust  Co,, 
172  U.  S.  493;  Deposit  Bank  v.  Frankfort,  191  U.  S.  499. 

The  question  on  the  merits  is  a  narrow  one.  Its  solution 
depends  upon  the  application  of  well-known  principles — 
too  well  known  to  need  much  more  than  statement.  It  is 
established  that  the  bar  of  a  judgment  in  another  action  for 
the  same  claim  or  demand  between  the  same  parties  extends 
to  not  only  what  was  pleaded  or  litigated  in  the  first  action, 
but  what  might  have  been  pleaded  or  litigated.  If  the  second 
action  is  upon  a  different  claim  or  demand,  the  bar  of  the 
judgment  is  limited  to  that  which  was  actually  litigated  and 
determined.  Cromwell  v.  Sac  County,  94  U.  S.  351;  Northern 
Pacific  Ry,  Co,  v.  Slaght,  205  U.  S.  122,  Of  course,  as  con- 
tended by  the  Chemical  Company,  there  are  some  defenses 
which  are  necessarily  negatived  by  the  judgment — ^are  pre- 
sumed never  to  have  existed.  These  are  such  as  go  to  the 
validity  of  the  plaintiff's  demand  in  its  inception  or  show 
its  performance,  such  as  is  said  in  Cromicell  v.  Sac  County, 
supra,  as  forgery,  want  of  consideration  or  payment.  But 
this  court  has  pointed  out  a  distinction  between  such  de- 
fenses and  those  which,  though  arising  out  of  the  transaction 
constituting  plaintiff's  claim,  may  cut  it  down  or  give  rise 
to  an  antagonistic  demand.  Of  such  defenses  we  said,  speak- 
ing through  Mr.  Justice  Holmes  in  Merchants*  Heat  &  Light 
Co.  V.  Clow  &  Sons,  204  U.  S.  286,  290,  that  the  right  to 
VOL.  ccx\^ — 17 


258  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

plead  them  as  a  defense  "is  of  modern  growth,  and  is  merely 
a  convenience  that  saves  bringing  another  suit,  not  a  necessity 
of  the  defense.''  And  showing  how  essentially  they  were 
independent  of  the  plaintiff's  demand,  although  they  might 
be  of  a  defense  to  it,  it  was  said  that  when  the  defendant 
set  them  up  he  became  a  plaintiff  in  his  turn  and  subject  to 
a  jurisdiction  that  he  otherwise  might  have  denied  and  re- 
sisted. The  principle  was  applied  to  recoupment  as  well  as 
to  set-off  proper.  Even  at  common  law,  it  was  said  (p.  289), 
"since  the  doctrine  has  been  developed,  a  demand  in  recoup- 
ment is  recognized  as  a  cross  demand  as  distinguished  from 
a  defense.  Therefore,  although  there  has  been  a  difference 
of  opinion  as  to  whether  a  defendant  by  pleading  it  is  con- 
cluded by  the  judgment  from  bringing  a  subsequent  suit  for 
the  residue  of  his  claim,  a  judgment  in  his  favor  being  im- 
possible at  common  law,  the  authorities  agree  that  he  is  not 
concluded  by  the  judgment  if  he  does  not  plead  his  cross 
demand,  and  that  whether  he  shall  do  so  or  not  is  left  wholly 
to  his  choice."  This  doctrine  is  attempted  to  be  avoided 
by  insisting  that  Kirven's  plea  in  the  Circuit  Court  and  his 
cause  of  action  in  the  case  at  bar  is  an  assertion  of  a  want 
of  consideration  for  the  note,  and,  it  is  urged,  brings  the  case 
under  one  of  the  defenses  mentioned  in  Cromwell  v.  Sac 
County  J  supra,  which  would  have  defeated  recovery  on  the 
note,  and  that  the  judgment  obtained  necessarily  negatives 
the  facts  upon  which  Kirven  now  bases  his  cause  of  action. 
"Call  it  what  he  may  please,"  the  Chemical  Company  says, 
"the  basis  of  Kirven's  claim  in  this  suit  is  an  alleged  failure 
of  consideration  of  such  great  degree  that  it  amounted  to 
positive  viciousness,  which  would  have  been  a  perfect  de- 
fense to  the  suit  in  the  United  States  Court."  It  may  be, 
indeed,  that  such  "viciousness"  could  have  been  set  up  in 
the  action  in  the  Circuit  Court,  but  it  would  be  to  confound 
distinctions  that  have  always  been  recognized,  and  the  effect 
of  which  are  pointed  out  in  Merchants'  Heat  &  Light  Co.  v. 
Clow  &  Sons,  supra,  to  conclude  that  the  judgment  recovered 


VIRGINIA-CAROLINA  CHEMICAL  CO.  v.  KIRVEN.  259 
215  U.  S.  Opinion  of  the  Court. 

negatives  the  existence  of  that  "viciousness,"  or  the  dam- 
ages which  were  consequent  to  it.  This  was  the  view  taken 
by  the  Supreme  Court  of  the  State,  that  court  deciding  that 
the  cause  of  action  in  the  Circuit  Court  and  that  in  the  case 
at  bar  were  upon  different  claims  or  demands — "one  being 
upon  a  promissory  note,  and  the  other  for  unliquidated  dam- 
ages," arising  from  the  destruction  of  Kirven's  crops.  And 
the  Supreme  Court  also  decided,  that  Kirven  withdrew  the 
defense  based  on  the  damages  to  him.  It  was  omitted,  as  we 
have  seen,  from  the  supplementary  answer.  Testimony  in 
regard  to  it  was  excluded  upon  the  objection  of  the  Chemical 
Company,  and  there  is  support  for  the  contention  that  the 
company  is  estopped  to  urge  that  a  defense  which  was  ex- 
cluded upon  its  objection  was  involved  in  the  action  and 
concluded  by  the  judgment. 

It  is,  however,  contended  by  the  Chemical  Company  that 
whether  new  matter  constitutes  a  defense  or  counterclaim 
under  §§  170,  171  of  the  Code  of  Procedure  of  South  Caro- 
lina (inserted  in  the  margin  ^),  it  must  be  set  up  by  a  de- 
fendant in  his  answer  and  cannot  be,  if  not  set  up,  used  as 
an  independent  cause  of  action.  It  is  also  contended  that 
this  being  the  practice  in  the  state  courts,  by  virtue  of  the 

^  Sec.  170.  The  answer  of  the  defendant  must  contain: 

'M.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant,  or  of  any  knowledge  or 
information  thereof  sufficient  to  form  a  belief. 

"2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise  language,  without  repetition." 

Sec.  171.  The  counterclaim  mentioned  in  the  last  section  must  be 
one  existing  in  favor  of  the  defendant  and  against  a  plaintiff,  between 
whom  a  several  judgment  might  be  had  in  the  action,  and  arising 
out  of  the  following  causes  of  action : 

''1.  A  cause  of  action  arising  out  of  the  contract  or  transaction  set 
forth  in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action. 

''2.  In  an  action  arising  on  contract,  any  other  cause  of  action 
arising  also  on  contract,  and  existing  at  the  commencement  of  the 
action.'' 


260   ,  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

provisions  of  §914  of  the  Revised  Statutes  of  the  United 
States,  it  becomes  the  practice  in  causes  in  the  courts  of  the 
United  States  held  in  South  Carolina.  That  section  requires 
"the  practice,  pleadings,  forms  and  modes  of  proceedings" 
in  the  Federal  courts  to  "conform  as  near  as  mav  be"  to  the 
practice  in  the  state  courts.  An  answer  to  this  contention 
is  that  the  Supreme  Court  of  the  State  did  not  so  construe 
the  Code  of  Procedure.  On  the  effect  of  the  judgment  of  the 
Circuit  Court  of  the  United  States  as  res  judicata  the  court 
divided,  but  three  members  of  the  court  must  have  enter- 
tained opinions  adverse  to  the  contention  of  the  Chemical 
Company.  Mr.  Justice  Gary  discussed  the  effect  of  the 
judgment,  and  was  of  opinion  that  it  was  not  res  jvdiccUa,  a 
conclusion  at  which  he  could  not  have  arrived  if  the  code  of 
the  State  required  Kirven  to  set  up  his  demand  for  damages 
in  the  answer.  Mr.  Justice  Woods,  in  his  concurring  opinion, 
expressed  the  view  that  under  the  code  the  demand  could 
have  been,  but  was  not  required  to  be,  pleaded  in  defense. 
Mr.  Justice  Pope  dissented  from  that  construction,  and  also 
from  the  effect  of  the  judgment  as  res  judicata,  Mr.  Jus- 
tice Jones  concurred  with  the  Chief  Justice  only  as  to  the 
effect  of  the  judgment. 

Finally,  it  is  urged  that  in  the  case  of  Greenwood  Drug 
Company  v.  Bromonia  Company,  81  S.  Car.  516,  decided 
since  the  case  at  bar,  the  Supreme  Court  of  the  State  of  South 
Carolina  is  in  accord  with  the  contention  of  the  Chemical 
Company  as  to  the  effect  of  judgments  as  res  judicata,  and  has 
modified  the  views  expressed  by  that  court  in  the  case  at  bar. 
It  may  well  be  contended  that  we  are  not  concerned  to  con- 
sider to  what  extent  that  learned  court  has  modified  its  views, 
as  we  have  taken  jurisdiction  of  this  case  because  of  our 
right  to  decide  the  weight  and  effect  to  be  given  to  the  judg- 
ment of  the  Circuit  Court.  It  is  enough,  however,  to  say  that 
the  Supreme  Court  of  South  Carolina  did  not  question  the 
correctness  of  its  decision  in  the  case  at  bar. 

Judgment  affirmed. 


SNYDER  V,  ROSENBAUM.  261 

215  U.  8.  Opinion  of  the  Ck>urt. 


SNYDER  V,  ROSENBAUM. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  TERRITORY  OF 

OKLAHOMA. 

No.  26.    Argued  November  8,  9,  1909.— Decided  December  6,  1909. 

In  this  case  the  judgment  of  the  Supreme  Court  of  the  Territory  of 

Oklahoma,  involving  contract  rights,  is  affirmed. 
The  opinion  of  the  Supreme  Court  of  the  Territory  followed  to  the 

effect  that  the  facts  stated  constituted  duress  within  the  meaning 

of  the  territorial  statute. 
Stating  only  part  of  a  statutory  definition  of  duress  in  the  charge 

to  the  jury  held  not  reversible  error,  it  not  appearing  that  the 

defendant  was  hurt  thereby. 
18  Oklahoma,  168,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Gardiner  Lathrop,  with  whom  Mr.  Armwell  L.  Cooper, 
Mr.  John  E.  Wilson  and  Mr.  John  S.  Wright  were  on  the 
brief,  for  plaintiff  in  error. 

Mr.  C.  J.  Wrightsman  and  Mr.  J.  J.  Darlington,  with  whom 
Mr.  Carl  Meyer  and  Mr.  L.  W.  Lee  were  on  the  brief,  for 
defendant  in  error. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  brought  by  the  executors  of  Robert 
M.  Snyder  to  reverse  a  judgment  upon  a  written  contract  in 
favor  of  one  Stribling,  assigned  by  him  to  the  defendant  in 
error,  Rosenbaum.  Snyder  v.  Stribling,  18  Oklahoma,  168. 
The  contract  was  dated  September  1,  1909,  and  purported 
to  be  a  sale  by  Stribling  of  12,700  head  of  steer  cattle,  then 
in  pasture  near  Gray  Horse,  Oklahoma,  of  which  12,500  were 


262  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

to  be  counted  out  to  the  purchaser;  with  particulars  as  to 
age.  Also,  of  from  3,200  to  3,500  acres  of  com-,  1,400  acres  of 
cane,  and  about  5,000  acres  of  hay,  all  near  the  same  place. 
Also,  of  certain  horses,  mules,  wagons,  and  ranch  outfit,  em- 
ployed by  Stribling  about  the  said  cattle.  By  a  later  clause 
the  farms  where  the  fodder  was  were  specified,  and  it  was 
added  that  the  exact  acreage  was  not  guaranteed.  The 
agreed  price  was  $500,000,  to  be  paid,  first,  by  the  transfer 
to  Stribling  of  a  ranch  in  Arizona,  with  the  herd  and  outfit 
thereon,  at  the  valuation  of  $150,000;  next,  by  the  assump- 
tion of  an  encumbrance  of  $240,000  on  10,500  of  the  cattle 
sold;  'the  balance  ...  to  be  paid  ...  or  ac- 
counted for  satisfactorily  to  said  Stribling  with  .  .  .  days 
of  the  signing  of  this  instrument.'  It  was  agreed  that  10,500 
of  the  cattle  were  free  from  encumbrances  except  the  $240,000 
just  mentioned,  and  that  if  there  was  any  encumbrance  of 
the  remaining  2,000  such  encumbrance  should  be  deducted 
from  the  purchase  price.  "Said  cattle  to  be  counted  within 
fifteen  days."  Both  parties  to  the  contract  were  experienced 
men. 

Stribling  alleged  performance  of  the  contract  on  his  part 
and  a  breach  by  Snyder  in  not  conveying  his  Arizona  ranch, 
and  in  not  accounting  for  a  cash  balance  of  $5,200.  The 
answer  set  up  a  document  of  October  1,  1900,  signed  by 
Snyder  and  Stribling,  and  addressed  to  a  third  party,  as  a 
supplemental  contract;  denied  performance  of  this  or  the 
original  agreement  by  Stribling,  stating  various  details  of 
failure,  and  alleged  fraud.  The  replication  averred  that  to 
secure  an  extension  of  time  for  the  payment  of  the  mortgage 
on  the  cattle  referred  to  in  the  original  contract,  Stribling  and 
Snyder,  on  September  5,  made  an  agreement  with  the  holder, 
by  one  part  of  which  Snyder  agreed  to  market  enough  of  the 
cattle  to  pay  the  notes  that  were  overdue,  and  by  which  he 
also  bound  himself  to  pay  the  other  mortgage  notes  as  they 
fell  due.  The  replication  continued  that  on  October  1,  1900, 
Stribling  had  delivered  the  cattle  and  other  property,  and 


SNYDER  V,  ROSENBAUM.  263 

215  U.  S.  Opinion  of  the  Court. 

that  Snyder^  being  in  possession  of  them,  told  Stribling  that 
unless  he  signed  the  document  set  up  in  the  answer  he  would 
not  pay  for  the  cattle  or  pay  the  mortgage  debt  or  release 
the  cattle;  that  both  parties  understood  that  this  threat,  if 
carried  out,  would  lead  to  an  immediate  foreclosure  and 
Stribling's  ruin,  and  that  in  those  circumstances,  character- 
ized as  duress,  Stribling  signed. 

There  was  a  trial  and  the  jury  found  for  the  plaintiff.  It 
made  in  addition  a  very  great  number  of  special  findings,  es- 
tablishing, subject  to  any  question  of  law  that  may  have  been 
reserved,  much  more  than  was  necessary  to  support  the  ver- 
dict. It  found  the  foDowing  facts  among  others:  In  pursu- 
ance of  the  September  contract,  12,391  head  of  cattle  were 
coimted  out  to  the  purchaser,  and  the  counting  of  the  rest  of 
the  12,500  was  stopped  by  the  purchaser's  agent,  he  being 
satisfied,  and  there  being  enough  cattle  in  sight  to  make  up 
the  total.  After  the  count,  on  or  about  September  26,  1900, 
the  purchaser  took  possession  and  Stribling  then  ceased  to 
exercise  control  over  the  property.  This  included  12,500 
head  of  cattle,  the  horses,  mules,  wagons,  harness,  pastures, 
camp  outfit  and  such  feed  as  was  there.  Stribling  asked 
Snyder  for  a  settlement  and  Snyder  made  no  objection  to 
the  correctness  of  the  count  or  to  the  representations  as 
to  the  acreage  of  feed  or  to  StribUng's  performance  otherwise, 
but  nevertheless  refused  to  do  his  part.  He  sold  the  cattle 
again  by  a  transaction  which  it  is  not  necessary  to  trace,  and 
the  negotiations  concerning  which  were  not  known  to  Strib- 
ling at  the  time  of  Snyder's  threats  mentioned  in  the  replica- 
tion, and  of  the  signing  of  the  document  of  October  1 .  The 
threats  alleged  are  found  to  have  been  made  and  to  have  in- 
duced Stribling  to  sign,  without  other  consideration.  At 
this  time  the  value  of  the  cattle  was  going  down,  and  that  of 
the  Arizona  property  was  going  up,  facts  that  may  partly 
account  for  Snyder's  conduct.  It  is  found  that  he  wanted  to 
avoid  the  September  contract,  and  to  get  the  cattle  by  merely 
discharging  the  liens.    But  the  parties  did  not  carry  out  the 


2W  OCTOBER  TERM,  1909. 

OpinioQ  of  the  Court.  215  U.  S. 

provisions  of  the  October  document,  and  upon  this  finding 
and  the  finding  as  to  the  pressure  under  which  it  was  executed 
it  is  unnecessary  to  state  its  provisions.  They  were  more 
onerous  to  StribUng  in  several  respects,  requiring  a  further 
count,  and  forfeiting  the  Arizona  property  if  the  full  number 
was  not  turned  over  and  payment  made  for  any  deficiency 
within  five  days  of  the  count. 

All  fraud  on  Stribling's  part  is  n^atived,  and  the  upshot  of 
the  whole  matter  is  that  he  performed  his  contract  in  every 
respect  except  that  there  was  not  so  much  fodder  as  was  sup- 
posed, and  for  that  the  jury  made  an  allowance  of  nine  thou- 
sand dollars. 

The  argument  for  the  plaintififs  in  error  discusses  the  evi- 
dence at  great  length.  But  we  shall  deal  only  and  viery  briefly 
with  the  rulings  that  seem  to  us  to  require  notice.  It  is  enough 
to  say  at  the  outset  that  there  was  some  evidence  to  support 
the  special  findings  that  we  have  mentioned.  But  it  is  urged 
that,  this  being  a  suit  upon  the  contract,  if  it  was  not  per- 
formed to  the  letter,  the  plaintifif  cannot  recover.  The  judge 
instructed  the  jury  that  a  contract  of  this  kind,  for  the  delivery 
of  a  certain  number  of  cattle,  is  severable,  and  that  if  the  whole 
number  of  cattle  or  the  full  number  of  acres  of  feed  were  not 
delivered,  still  the  plaintiff  could  recover  the  contract  price  less 
an  allowance  for  the  damage  occasioned  by  the  failure.  This  is 
assigned  as  error.  It  is  unnecessary  to  consider  whether  the 
construction  of  the  contract  was  too  liberal  in  favor  of  the 
plaintifif  or  whether  it  embodied  the  understanding  upon  which 
such  dealings  take  place.  The  jury  found  that  all  the  cattle 
were  delivered.  As  to  the  deficiency  in  the  acreage  of  fodder, 
the  contract  stated  that  the  precise  amount  was  not  guaran- 
teed, and  the  jury  found  that  Snyder  was  acting  on  his  own  in- 
spection. The  deficiency  did  not  go  to  the  root  of  the  con- 
tract. Furthermore  if,  after  the  parties  have  had  a  full  trial, 
and  after  such  specific  findings  as  were  made,  any  amend- 
ment were  necessary,  which  we  are  far  from  intimating,  no 
doubt  it  would  be  allowed.    The  defendant  suffered  no  possi- 


SNYDER  V.  ROSENBAUM.  265 

215  U.  S.  Opinion  of  the  Court. 

ble  surprise.     See  also  Wilson's   Stats.   Oklahoma,    1903, 
§4344. 

It  is  objected  further  that  the  other  cattle,  above  the  10,500 
mentioned  in  the  contract  as  mortgaged,  and  the  fodder  were 
subject  to  liens  for  about  $110,000.  But  this  possibility  was 
contemplated  by  the  contract,  the  liens  were  satisfied  out  of 
the  purchase  price,  and  no  harm  was  done.  Finally,  it  is  said, 
that  the  delivery  was  not  made  within  fifteen  days.  But,  by 
statute,  time  is  not  of  the  essence  of  a  contract,  'unless  by  its 
terms  expressly  so  provided.'  Wilson,  Stats.  1903,  §809. 
The  delay  was  not  the  fault  of  Stribling,  but  was  due  to 
Snyder  and  his  agents.  The  cattle  were  accepted  without  ob- 
jection on  that  ground,  and  if  the  delay  could  have  been  com- 
plained of  under  the  circumstances,  performance  ad  diem  was 

waived. 

The  other  principal  defense  and  the  ground  of  counter- 
claim relied  upon  was  the  alleged  contract  of  October  1.  As 
the  validity  of  this  contract  was  denied  and  the  execution 
of  it  said  to  have  been  abandoned,  of  course  the  judge  was 
right  in  refusing  instructions  that  assumed  it  to  be  in  force. 
But  complaint  is  made  of  an  instruction  to  the  jury  in  the 
language  of  the  statutes  as  to  duress  and  undue  influence. 
Probably  through  a  mechanical  sUp,  only  a  part  of  the  statute 
as  to  duress  was  recited,  so  that  fraudulent  confinement  of 
the  person  seemed  to  be  stated  as  an  exhaustive  definition. 
But  this  did  not  hurt  the  defendant,  if  for  no  other  reason, 
because  there  was  no  pretence  of  dureiss  in  that  sense.  The 
judge  then  went  on  to  quote  the  definition  of  one  form  of  un- 
due influence,  as  'taking  a  grossly  oppressive  and  unfair 
advantage  of  another's  necessities  or  distress.'  Wilson, 
Stats.  1903,  §  746.  It  is  objected  that  undue  influence  was 
not  pleaded.  But  the  facts  were  pleaded  and  were  found  by 
the  jury  in  like  form.  We  should  assume  that  those  facts 
amounted  to  undue  influence  within  the  meaning  of  the 
Oklahoma  statutes  until  the  Supreme  Court  of  the  State  says 
otherwise.    But  it  is  said  that  they  do  not  amount  to  duress. 


266  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

and  therefore  an  instruction  should  have  been  given,  as  asked, 
that  there  was  no  evidence  of  duress.  We  see  no  reason  for 
not  following  the  opinion  of  the  territorial  court  that  the  facts 
also  constituted  duress  within  the  meaning  of  the  statute. 
See  Silsbee  v.  WMer,  171  Massachusetts,  378.  But  it  does  not 
seem  to  matter  what  they  are  called  if  they  are  found  to  have 
existed.  Furthermore,  we  see  no  ground  on  which  we  can  go 
behind  the  finding  that  neither  side  carried  out  the  ^eged 
October  contract.  There  was  some  evidence  to  that  eflFect, 
and  we  are  not  concerned  with  its  weight.  We  do  not  think 
it  necessary  to  mention  all  the  points  that  we  have  examined. 
Upon  the  whole  case  we  are  of  opinion  that  no  error  of  law  is 
disclosed  that  entitles  the  plaintiffs  in  error  to  a  new  trial. 

Judgment  affirmed. 


RIO  GRANDE  DAM  AND   IRRIGATION  COMPANY   v. 

UNITED  STATES. 

APPEAL    FROM  THE   SUPREME   COURT   OF  THE   TERRITORY   OP 

NEW   MEXICO. 

No.  49.     Argued  December  3,  1909.— Decided  December  13,  1909. 

Where  a  case  is  opened  that  further  evidence  may  be  produced,  it 
is  also  open  for  the  amendment  of  the  original  pleadings  or  for 
additional  pleadings  appropriate  to  the  issues;  and  permission 
by  the  lower  court  to  file  such  supplemental  complaint  is  not  in- 
consistent with  the  mandate  of  this  court  remanding  the  case  with 
directions  to  grant  leave  to  both  sides  to  adduce  further  evidence. 

Under  the  provisions  of  the  Code  of  New  Mexico  allowing  supple- 
mental pleadings  alleging  facts  material  to  the  issue,  the  fact  that 
the  defendant  corporation  has,  since  the  suit  was  brought  by  the 
Government  to  enjoin  it  from  so  building  a  dam  as  to  interfere  with 
the  navigability  of  an  international  river,  failed  to  exercise  its 
franchise  in  accordance  with  the  statute,  is  germane  to  the  object 
of  the  suit  and  may  be  pleaded  by  supplemental  complaint. 


RIO  GRANDE  DAM  &c.  CO.  v,  UNITED  STATES.  267 
215  U.  S.  Statement  of  the  Gaae. 

The  allowance  of  amendtnents  of  supplemental  pleadings  must  at 
every  stage  of  the  cause  rest  with  the  discretion  of  the  court,  which 
discretion  must  depend  largely  on  the  special  circumstances  of 
each  case,  nor  will  the  exercise  of  this  discretion  be  reviewed  in 
the  absence  of  gross  abuse. 

Attorneys  of  record  are  supposed  to  be  present  during  the  terms  of 
the  court  in  which  their  causes  are  pending,  and  are  chargeable 
with  notice  of  proceedings  transpiring  in  open  court. 

In  this  case  the  action  of  the  trial  court  in  taking  a  supplemental 
complaint  for  confessed  in  the  absence  of  any  pleading  after  the 
time  therefor  had  elapsed,  sustained,  there  appearing  to  be  no 
excuse  for  the  default  and  no  irregularity  appearing  in  the  order 
permitting  the  filing  of  the  complaint  or  in  the  service  thereof. 

The  fact  that  for  a  time  work  was  enjoined  at  the  instance  of  the 
Government  does  not  excuse  the  delay  in  completing  work  under 
statutory  permission  within  the  time  prescribed  where  the  delay 
exceeds  the  limit  after  deducting  all  the  time  for  which  the  in- 
junction was  in  force. 

13  New  Mexico,  386,  affirmed. 

The  general  object  of  this  suit — which  was  brought  by  the 
United  States  in  one  of  the  courts  of  New  Mexico  on  the 
twenty-fourth  day  of  May,  1897 — was  to  obtain  an  injunction 
to  prevent  the  Rio  Grande  Dam  and  Irrigation  Company  from 
constructing  and  maintaining  a  dam  across,  and  a  reservoir 
over  and  near,  the  Rio  Grande  River  at  a  certain  point  in  that 
Territory.  In  the  court  of  original  jurisdiction  the  suit  was 
dismissed  and  the  dismissal  was  affirmed  by  the  Supreme 
Court  of  the  Territory;  but  that  judgment  was  reversed  by 
this  court,  with  instructions  to  set  aside  the  decree  of  dismissal 
and  to  inquire  whether  the  intended  acts  of  the  defendants 
in  the  construction  of  a  dam  and  appropriating  the  waters  of 
the  Rio  Grande  would  substantially  diminish  the  navigability 
of  that  stream  within  the  limits  of  present  navigability;  and, 
if  so,  to  enter  a  decree  restraining  those  acts  to  the  extent  that 
they  would  so  diminish.  United  States  v.  Rio  Grande  Irrigch 
tion  Company,  174  U.  S.  690,  708,  710.  The  mandate  of  this 
court  to  that  effect  was  executed  by  the  Supreme  Court  of  the 
Territory,  and  the  cause  went  back  to  the  court  of  original 


268  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  8. 

jurisdiction  with  directions  to  proceed  in  accordance  with  that 
mandate. 

The  cause  was  again  heard  in  the  court  of  original  jurisdic- 
tion, that  court,  denying  a  motion,  in  behalf  of  the  United 
States,  for  a  continuance  in  order  that  it  might  more  fully 
prepare  its  case.  The  suit,  on  final  hearing,  was  again  dis- 
missed, and  that  judgment  was  sustained  by  the  Supreme 
Court  of  the  Territory.  But  this  court  reversed  the  decree  of 
the  latter  court  and  remanded  the  cause  \^ath  instructions  to 
reverse  the  decree  of  the  court  of  original  jurisdiction,  and 
with  directions  "to  grant  leave  to  both  sides  to  adduce  fiuther 
evidence."  United  State^'i  v.  Rio  Grande  Dam  &  Irrigation  Co., 
184  U.  S.  416,  424,  425.  The  mandate  of  this  court  to  the 
above  effect  was  executed,  and  the  case  was  again  placed  on 
the  docket  of  the  court  of  original  jurisdiction. 

For  a  full  statement  of  the  issues  and  facts  up  to  this  point 
in  the  litigation  reference  is  made  to  the  opinions  of  this  court 
as  reported  in  174  U.  S.  690,  and  184  U.  S.  416. 

The  record  shows  that  on  the  seventh  day  of  April,  1903 — 
after  the  last  decision  in  this  court — the  United  States,  by 
leave  of  the  court  of  original  jurisdiction,  filed  a  supjJemental 
complaint,  which  set  forth  the  then  status  of  the  case.  That 
complaint  referred  to  the  defendant's  plea,  stating  that  it  had 
complied  with  the  requirements  of  the  act  of  Congress  ap- 
proved March  3d,  1891,  repeahng  timber  culture  laws  and  for 
other  purposes,  26  Stat.  1095,  1102,  c.  561,  §§20,  21,  and 
"  had  acquired  a  right  to  construct  said  dam  and  divert  said 
water  by  reason  of  compliance  with  the  terms  of  said  Act." 
It  then  proceeded:  "II.  Plaintiff  further  alleges  that  defend- 
ant's plea  above  referred  to,  claiming  a  right  to  construct  said 
dam  under  the  said  act  of  Congress,  approved  March  3d,  1891, 
c.  561,  was  filed  on  June  26,  A.  D.  1897,  and  that  its  articles  of 
incorporation  and  proof  of  its  incorporation,  and  the  map  and 
survey  of  its  reservoir  had  been  filed  and  approved  by  the 
Secretary  of  the  Interior  long  prior  to  the  filing  of  said  plea,  as 
appears  from  an  inspection  of  said  plea  itself.    III.  Plaintiff 


RIO  GRANDE  DAM  &c.  CO.  v,  UNITED  STATES.  269 
215  U.  S.  Statement  of  the  Case. 

ftirther  alleges  that  in  and  by  section  twenty  of  the  said  act  of 
March  3d,  1891,  above  referred  to,  it  was  provided  'that  if  any 
section  of  said  canal,  or  ditch,  shall  not  be  completed  within 
five  years  after  the  location  of  said  section,  the  rights  herein 
granted  shall  be  forfeited  as  to  any  uncompleted  section  of  said 
canal,  ditch  or  reservoir,  to  the  extent  that  the  same  is  not 
completed  at  the  date  of  the  forfeiture,'  and  that  although 
five  years  since  the  filing  and  approval  of  said  articles  of  in- 
corporation, proofs  of  organization,  maps  and  surveys  have 
long  since  elapsed,  defendant  has  not  complied  with  the  re- 
quirements of  said  act,  but  has  failed  to  construct  or  complete 
within  the  period  of  five  years  after  the  location  of  said  canal 
and  reservoir  any  part  or  section  of  the  same,  and  the  same 
has  by  reason  thereof  become  forfeited.  IV.  Plaintifif  further 
alleges  that  diuing  all  of  said  time,  except  from  May  24th, 

1897,  to 1897,  the  date  when  the  temporary  injunction 

was  dissolved,  the  said  defendants  have  been  in  no  wise 
hindered,  restrained  or  prevented  from  complying  with  the 
provisions  of  said  act  by  any  judicial  order  or  process  whatso- 
ever. V.  Wherefore,  plaintiff  prays  to  be  pennitted  to  file 
this  supplemental  bill  of  complaint,  and  that  the  same  be  con- 
sidered upon  the  hearing  of  this  cause,  and  that  the  defendants 
be  decreed  to  have  forfeited  all  the  rights  they  may  have  had, 
or  claimed  under  and  by  virtue  of  said  act  of  March  3d,  1891, 
not  hereby  admitting,  however,  that  the  defendants  ever  ac- 
quired any  rights  imder  and  by  virtue  of  said  act.  Plaintiff 
further  prays  that  the  injunction,  and  all  other  relief  prayed 
for  in  and  by  said  amended  bill  of  complaint,  be  granted,  and 
that  said  injimction  be  made  perpetual,  and  that  it  have  and 
recover  its  costs  expended  in  this  cause,  and  thus  plaintiff  will 
ever  pray." 

A  copy  of  this  supplemental  complaint  was  served  on  the 
attorney  of  the  defendants  on  the  day  (April  7th,  1903)  it  was 
filed.  More  than  forty  days  thereafter,  on  the  twenty-first 
day  of  May,  1903,  a  decree  was  entered  finding  the  allegations 
of  the  supplemental  complaint — no  demurrer,  answer  or  other 


270  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

pleading  having  been  filed  thereto — "are  confessed  and  are 
true."  The  court  further  found  "that  the  articles  of  incorpo- 
ration and  the  map,  survey  of  the  reservoir  of  the  defendant 
corporation,  the  Rio  Grande  Dam  and  Irrigation  Company, 
were  filed  with  the  Secretary  of  the  Interior  prior  to  the 
twenty-sixth  day  of  June,  A.  D.  1897,  and  were,  prior  to  said 
date,  approved  by  the  Secretary  of  the  Interior;  and  it  further 
finds  that  the  said  defendants  have  not  completed  its  said 
reservoir  or  said  ditch,  or  any  section  thereof,  within  five  years 
after  the  location  of  the  said  reservoir  and  its  said  ditch  line, 
or  within  five  years  after  the  approval  of  the  same  by  the 
Secretary  of  the  Interior;  and  the  court  further  finds  that  five 
years  since  the  filing  and  approval  of  the  said  articles  of  in- 
corporation, proof  of  organization,  maps  and  surveys  of  the 
said  reservoir  and  ditch  Hne  of  the  defendants  had  long  since 
elapsed  prior  to  the  filing  of  the  said  supplemental  bill  and 
that  the  defendants  had  not  complied  with  the  requirements 
of  the  act  of  Congress,  approved  March  3,  1901,  under  which 
the  same  were  filed,  but  have  failed  to  construct  or  complete 
within  the  period  of  five  years  after  the  location  of  the  said 
canal  and  reservoir  any  part  or  section  of  the  same."  And  it 
was  adjudged  "that  the  rights  of  the  said  defendants,  or  either 
of  them,  to  so  construct  and  complete  the  said  reservoir  and 
said  ditch,  or  any  part  thereof,  under  and  by  virtue  of  the 
said  act  of  Congress  of  March  3,  1901,  be  and  the  same  are 
hereby  declared  to  be  forfeited.  It  is  further  ordered,  ad- 
judged and  decreed  by  the  court  by  reason  of  the  premises 
that  an  injunction  be,  and  the  same  is  hereby  granted  against 
the  said  defendants,  enjoining  them  from  constructing  or  at- 
tempting to  construct  the  said  reservoir,  or  any  part  thereof, 
and  that  the  same  be  made  perpetual."  (By  an  amended  de- 
cree filed  October  5th,  1903,  and  entered  nunc  pro  tunc  as  of 
May  21st,  1903,  the  date  given  as  March  3d,  1901,  in  the  decree 
was  made  to  read  March  3d,  1891,  in  order  to  conform  to  the 
actual  date  of  the  act  of  Congress  intended  to  be  referred  to 
both  by  the  United  States  and  by  the  court.) 


RIO  GRANDE  DAM  &c.  CO.  v.  UNITED  STATES.  271 
215  U.  S.  Argument  for  Plaintiffs  in  Error. 

A  statute  of  New  Mexico,  in  force  at  the  time  and  before  the 
above  decree  was  rendered,  provided:  "Every  pleading,  sub- 
sequent to  the  complaint,  shall  be  filed  and  served  within 
twenty  days  after  service  of  the  pleading  to  which  it  is  an 
answer,  demurrer,  or  reply."  Compiled  Laws  of  New  Mexico, 
1907,  Title  33;  Code  of  Civil  Procedure,  c.  1,  art.  4,  sub.  sec.  46. 

On  the  thirty-first  of  October,  1903,  the  defendants  moved 
the  court  to  vacate  the  order  allowing  the  supplemental  bill 
to  be  filed,  and  that  they  be  permitted  to  come  in  and  answer 
the  supplemental  bill.  This  motion  was  denied  and  upon  ap- 
peal to  the  Supreme  Court  of  the  Territory  the  action  of  the 
trial  court  on  this  point  was  sustained.  The  former  court,  at 
the  same  time,  March  2d,  1906,  adjudged  that  the  right  of  the 
defendants,  or  either  of  them,  to  construct  and  complete  its 
reservoir  and  ditch,  or  any  part  thereof,  within  the  time  re- 
quired by  the  act  of  Congress  of  March  3d,  1901,  was  forfeited. 
It  was  also  adjudged  that  the  defendants  be  enjoined  from 
constructing,  or  attempting  to  construct,  the  said  reservoir  or 
any  part  thereof.  The  injunction  was  made  perj)etual.  From 
that  judgment  the  present  appeal  was  prosecuted. 

Mr.  William  W,  Bride  and  Mr.  Frederick  S,  Tyler^  with 
whom  Mr,  Charles  A,  Douglas  was  on  the  brief,  for  plaintiffs 
in  error: 

The  lower  court  erred  in  permitting  a  supplemental  com- 
plaint to  be  filed.  This  court  has  many  times  frowned  upon 
such  acts.  Southard  v.  Ru^seU,  16  How.  547;  Ex  parte  Du- 
buque, 1  Wall.  69;  Ames  v.  Kimberly,  136  U.  S.  629;  Re  Game- 
well  Co.,  73  Fed.  Rep.  908;  West  v.  Brashear,  14  Pet.  51; 
Mason  v.  Harpers  Ferry,  20  West  Va.  223;  Boggs  v.  WiUard, 
70  Illinois,  315;  Rees  v.  McDaniels,  131  Missouri,  681;  Gage  v. 
Bailey,  119  Illinois,  539;  Chateau  v.  AUen,  114  Missouri,  56; 
Mackall  v.  Richards,  116  U.  S.  47;  ite  Sandford  Tool  Co,,  160 
U.  S.  255;  SiJtibald  v.  United  States,  12  Pet.  488;  Tex.  &  Pac. 
Ry.  V.  Anderson,  149  U.  S.  237. 

The  direction  to  allow  further  proof  was  specific  and  the 


272  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

court  below  varied  that  direction — ^and  this  can  be  corrected 
by  mandamus  or  appeal.  United  States  v.  FosscUt,  21  How. 
445;  Re  Sandford  Tool  Co,,  160  U.  S.  255.  The  supplemental 
bill  was  improperiy  so  called;  it  was  not,  nor  was  its  purpose, 
related  to  the  original  bill  but  it  set  up  independent  cause  of 
action.  This  is  not  permissible.*  AccumvJUUor  Co,  v.  Electric 
Co.,  44  Fed.  Rep.  602,  607;  2  Street's  Fed.  Eq.  Prac,  §§  1170, 
1171;  1  Fosters  Fed.  Prac,  4th  ed.,  631;  Trust  Co,  v.  Street 
Railway,  74  Fed.  Rep.  67;  Putney  v.  Whitmire,  66  Fed.  Rep. 
385;  Stafford  v.  HowleU,  1  Paige  (N.  Y.),  200;  Vansile's  Eq. 
Plead.,  §263;  MUner  v.  MUner,  2  Edw.  Ch.  (N.  Y.)  114; 
Higginson  v.  C,  5.  cfe  Q.  R,  72.,  102  Fed.  Rep.  197;  Fletcher's 
Eq.  Plead.  892. 

The  supplemental  bill  must  be  germane  to  the  original  bill, 
and  if  the  original  bill  shows  no  ground  for  rehef  it  cannot  be 
aided  by  a  supplemental  bill  setting  up  matters  that  have 
since  arisen.  Minnesota  Co.  v.  St.  Paul  Co.,  6  Wall.  742; 
Story  Eq.  Plead.,  §339;  Hughes  v.  Carue,  135  Illinois,  519; 
Maynard  v.  Green,  30  Fed.  Rep.  643;  Prouly  v.  Lake  Shore 
Ry.,  85  N.  Y.  275;  Snead  v.  McCouU,  12  How.  407. 

The  notice  was  insufficient.  Equity  Rule  57,  and  cases 
cited  in  Desty's  Rules,  7th  ed.,  p.  110. 

The  Solicitor  General  for  the  United  States,  appellee: 
The  trial  court  properly  allowed  complainant's  supple- 
mental bill  to  be  filed.  Nothing  in  the  previous  decisions  of 
this  court  was  incompatible  with  the  filing  of  the  supple- 
mental bill  or  with  the  subsequent  proceedings  upon  it.  Al- 
lowance of  the  filing  of  a  supplemental  bill  is  within  the  discre- 
tion of  the  trial  court.  Berliner  Gramoplwne  Co.  v.  Seaman, 
113  Fed.  Rep.  750,  754;  Jacob  v.  Lorenz,  98  California,  332, 
337;  Farmers*  Loan  &  Trust  Co.  v.  Bankers'  &  Merchants' 
Telegraph  Co.,  109  N.  Y.  342.  And,  in  general,  granting  or 
refusing  leave  to  file  a  new  plea,  or  to  amend  a  pleading,  is 
discretionary  and  is  not  reviewable  on  appeal  except  for  gross 
abuse  of  discretion.    Mandeville  v.  Wilson,  5  Cranch,  15,  17; 


RIO  GRANDE  DAM  &c.  CO.  v,  UNITED  STATES.  273 

215  U.  iS.  Argument  for  the  United  States. 

Gomdey  v.  Bunyan,  138  U.  S.  623;  Chapman  v.  Barney,  129 
U.  S.  677;  Walden  v.  Craig,  9  Wheat.  576;  Chirac  v.  Reinicker, 
11  Wheat.  280;  Ex  parte  Bradstreet,  7  Pet.  634. 

Notice  of  complainant's  application  for  leave  to  file  its  sup- 
plemental bill  was  served  upon  the  defendants'  attorney; 
and  no  evidence  to  the  contrary  is  found  in  the  record.  But 
the  omission  of  notice  would  not  be  material  error,  because  a 
copy  of  the  bill  was  at  once  served  upon  the  attorney  for  de- 
fendants and  they  had  full  opportunity  thereupon  to  move  to 
strike  it  ofif  the  file  or  demur.  As  defendants  failed  in  any  way 
to  attack  the  filing  of  the  bill  or  to  demur  or  plead  in  any  way 
to  it  within  the  time  allowed  by  §  2685,  New  Mexico  Code  of 
Civil  Procedure,  it  was  the  duty  of  the  trial  court  to  take  the 
bill  pro  confesso  and  to  enter  the  decree. 

Notice  of  an  appUcation  for  leave  to  file  a  supplemental 
bill  is  not  in  all  cases  necessary.  It  is  a  matter  of  discretion 
with  the  court  whether  to  require  such  notice.  Eager  v. 
Price,  2  Paige  Ch.  333,  335;  Lawrence  v.  Bolton,  3  Paige,  294, 
295;  Barrido  v.  Trenton  Mut.  Life  &  Fire  Ins,  Co.,  13  N.  J.  Eq. 
154, 155;  Winn  &  Ross  v.  Albert  et  al,  2  Md.  Ch.  42;  Taylor  v. 
Taylor,  1  Mac.  &  G.  397. 

Whether  or  not  a  bill  is  not  supplemental  in  character,  is 
waived  by  failure  to  demur,  plead  or  object  thereto  within  the 
time  allowed.  The  proper  method  of  objecting  on  the  ground 
of  want  of  supplemental  matter  is  by  demurrer.  2  Daniell  Ch. 
PI.  &  Pr.,  6th  Am.  ed.,  p.  1535;  Bcmyer  v.  Bright,  13  Price,  316; 
Stafford  v.  HawleU,  1  Paige  Ch.  200. 

The  supplemental  bill  does  not  set  up  matter  foreign  to  the 
original  case  in  alleging  forfeiture  of  defendants'  rights  in 
their  dam  and  reservoir  sites.  Forfeiture  could  not  be  claimed 
in  the  original  bill  because  it  was  not  true  when  the  bill  was 
filed.  It  is  certainly  proper  to  add  the  claim  of  forfeiture  to 
the  original  bill  when  the  cause  of  forfeiture  occurred  after  the 
suit  was  begun.  Matter  may  be  introduced  by  supplemental 
bill  which  could  have  been  added  to  the  original  bill  if  then 
available.  Winn  &  Ross  v.  Albert  et  al,,  2  Md.  Ch.  42,  48; 
VOL.  ccxv — 18 


274  OCTOBER  TERM,  1909. 

Opnuan  of  the  Court.  21511.3. 

Hardin  v.  Boyd,  113  U.  S.  756.  As  to  scope  allowable  to  a 
supplemental  biU,  see  Janes  v.  Janes,  3  Atk.  110;  Eager  v. 
Price,  2  Paigp,  333;  Saunders  v.  Frost,  5  Pick.  275;  Fisher  v. 
Holden,  84  Michigao,  494;  Jacob  v.  Lorem,  98  Califonua,  332; 
Hasbrouck  v.  Shuster,  4  Barb.  285;  Candler  v.  PeOU,  1  Paige 
Ch.  168;  Winn  A  Ross  v.  Aftcrt  et  al,,  2  Md.  Ch.  42;  Mutter  v. 
Chauvd,  5  Russ.  42;  Aeeve  v.  JVorfA  Carolina  Land  A  Timber 
Co.,  141  Fed.  Rep.  821;  Jenkins  v.  Int.  Nat.  Bank,  127  U.  S. 
484. 

The  rule  that  a  bad  title  set  up  in  the  original  bill  cannot  be 
aided  by  supplemental  bill  setting  up  a  new  and  distinct  title 
obtains  only  when  complainant's  original  title  is  wholly  bad; 
it  does  not  prevent  the  assertion  of  a  new  title  when  it  adds 
to  or  supplements  the  first  title,  instead  of  contradicting  it. 
Winn  &  Ross  v.  Albert,  supra.  And  see  Jacques  v.  HaU,  3 
Gray,  194,  197;  Candler  v.  Pettit,  1  Paige,  168;  Edgar  v. 
Clevenger,  3  N.  J.  Eq.  258;  Lowry  v.  Harris,  12  Minnesota,  255, 
266; /Jeew  V.  ri??i6er  Co.,  141  Fed.  Rep.  821,834.  There  is  no 
inconsistency  between  the  supplemental  and  original  bills  in 
this  case.  The  purpose  of  each  was  to  restrain  defendants' 
construction  and  use  of  the  proposed  dam  and  reservoir. 

Even  if  the  supplemental  bill  had  been  improperly  allowed 
to  be  filed,  it  was  right  to  deny  defendants'  motion  to  vacate 
the  allowance  of  the  filing  of  the  bill  and  the  decree  that  had 
been  entered  or  to  open  defendants'  default  and  permit  them 
to  plead.  Defendants'  inaction  and  laches  deprived  them  of 
any  claim  to  relief;  their  motion  was  too  late  imder  the  New 
Mexico  statute;  the  supplemental  character  of  complainant's 
bill  was  not  questionable  by  motion  but  only  by  demurrer; 
and  the  answer  which  defendants  asked  leave  to  interpose 
failed  itself  to  show  any  defense  against  default. 

Mr.  Justice  Harlan,  after  makmg  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

We  perceive  no  error  in  the  judgment  now  under  review. 


RIO  GRANDE  DAM  &c.  CO.  v.  UNITED  STATES.  275 
215  U.  S.  Opinion  of  the  Court. 

The  main  contention  of  the  defendants  is  that  it  was  error  to 
permit  the  United  States  to  file  its  supplemental  bill.  We  do 
not  accept  this  view  of  the  trial  court's  duty.  When  the  cause 
was  last  here  the  court  expressed  the  conviction  that  if  the 
case  was  finally  disposed  of  on  the  record  as  it  then  was  great 
wrong  might  be  done  to  the  United  States  and  to  all  interested 
in  preserving  the  navigability  of  the  Rio  Grande.  Hence,  the 
cause  was  sent  back  that  each  side  might  adduce  further  evi- 
dence, if  they  had  any  to  adduce.  When  the  Government 
asked  to  file  its  supplemental  bill  the  suit  was  of  course  rein- 
stated on  the  docket  of  the  court  of  original  jurisdiction  for 
such  action  as  might  be  proper  or  necessary.  The  case  having 
been  opened  that  further  evidence  might  be  produced,  it  was 
certainly  open  for  an  amendment  of  the  original  pleadings  or 
for  such  additional  pleadings  as  might  be  appropriate  to  the 
issues  between  the  parties.  The  parties  were  not  limited  to  the 
production  merely  of  evidence.  The  defendants,  in  the  dis- 
cretion of  the  court,  could  have  been  allowed,  upon  a  proper 
showing  and  before  taking  further  proof,  to  amend  their  plead- 
ings, and  equally  the  Government,  before  taking  further  proof, 
could  have  been  allowed  to  file  a  supplemental,  complaint. 
Marine  Ins.  Co,  v.  Hodgson,  6  Cranch,  206,  218.  Besides,  sub- 
section 87  of  the  New  Mexico  Civil  Code  would  seem  to  be 
broad  enough  to  cover  the  question  of  power.  It  provides: 
"A  party  may  be  allowed,  on  motion,  to  make  a  supplemental 
complaint,  answer  or  reply,  alleging  facts  material  to  the 
cause,  or  praying  for  any  other  or  different  relief,  order  or 
judgment."  The  facts  set  forth  in  the  supplemental  com- 
plaint were  manifestly  not  foreign  to  the  Government's  original 
cause  of  action.  In  every  substantial  sense  those  facts  were 
material.  Strictly  speaking,  they  may  have  constituted  new 
matter,  but  they  did  not  present  a  new  cause  of  action. 
Jenkins  v.  International  Bank  of  Chicago,  127  U.  S.  484.  They 
grew  out  of  and  were  connected  with  the  same  transaction 
from  which  this  litigation  arose,  and  were  germane  to  the  ob- 
ject of  the  suit.    That  object  was  to  restrain  the  defendants 


276  OCTOBER  TERM,  1909. 

Opinion  of  the  Ck>urt.  215  U.  S. 

from  constructing  and  maintaining  dams,  reservoirs,  canals  or 
ditches  that  would  obstruct  the  navigable  portion  of  the  Rio 
Grande  River.  If  all  the  grounds  of  reUef  set  out  in  the  sup- 
plemental complaint  did  not  exist  when  the  original  complaint 
was  filed,  they  were  alleged  to  exist  when  the  supplemental 
complaint  was  tendered,  and  being  connected  with  the 
original  cause  of  action  it  was  right  to  bring  them,  in  proper 
form,  to  the  attention  of  the  court  when  determining  whether 
the  Government  was  entitled  to  the  relief  it  asked.  So  the 
Supreme  Court  of  the  Territory  held,  and  so  we  hold.  There 
was,  plainly,  no  abuse  of  discretion  or  of  the  established  rules 
of  practice  in  permitting  the  supplemental  complaint  to  be 
filed.  The  allowance  of  amendments  of  equity  pleadings  must 
"at  every  stage  of  the  cause,  rest  in  the  discretion  of  the  court; 
and  that  discretion  must  depend  largely  on  the  special  circum- 
stances of  each  case."    Hardin  v.  Boyd,  113  U.  S.  756,  761. 

Upon  the  question  of  the  diUgence  or  want  of  diUgence  of 
the  parties,  it  may  be  said  that  the  supplemental  complaint 
was  tendered  at  a  time  when  the  court  was  open ;  the  leave  to 
file  was  given  in  open  court;  and  the  defendant's  attorney  was 
served  with  a  copy  of  that  complaint  on  the  very  day  it  was 
tendered  and  filed.  On  this  part  of  the  case  the  Supreme 
Court  of  the  Territory  said  that  attorneys  of  record  are  pre- 
sumed to  be  present  during  terms  of  the  court  in  which  their 
causes  are  pending,  and  in  contemplation  of  law  were  charge- 
able with  notice  of  all  proceedings  transpiring  in  open  court 
in  respect  of  such  causes;  also,  that  "under  the  facts  of  this 
case,  counsel  are  presumed  to  have  been  present,  and  to  have 
such  notice  as  the  law  requires  of  matters  transpiring  in  open 
court  on  the  day  on  which  leave  was  granted  to  file  the  supple- 
mental complaint,  and  the  same  was  filed  and  served  upon 
them.  Younge  v.  Broxson,  23  Alabama,  684;  Sanders  v.  Sav- 
age, 63  S.  D.  218.  The  court  was  vested  with  discretion  by  the 
last  clause  of  sec.  104,  supra,  [Code  of  Civil  Procedure,  as 
amended  by  c.  11  of  Laws  of  1901]  which  does  not  seem  to 
have  been  abused,  nor  was  there  any  abuse  of  the  general  dis- 


RIO  GRANDE  DAM  &c.  CO.  v.  UNITED  STATES.  277 

215  U.  S.  Opinion  of  the  Court. 

cretion  to  allow  an  amended  or  supplemental  bill  in  equity 
conferred  upon  the  courts  of  the  United  States,  as  may  be  seen 
by  reference  to  the  case  of  Berliner  Gramophone  Co,  v.  Seamon, 
113  Fed.  Rep.  750,  in  which  it  was  held  that,  'the  granting  of 
leave  to  file  an  amended  and  supplemental  bill  is  a  matter 
within  the  discretion  of  the  court,  and  its  action  will  not  be 
reviewed  in  an  appellate  court  unless  there  has  been  a  gross 
abuse  of  this  discretion.' " 

The  objection  that  the  trial  court  erred  in  taking  the  supple- 
mental complaint  for  confessed  cannot  be  sustained.  That 
objection  was  thus  properly  disposed  of  by  the  Supreme 
Court  of  the  Territory:  "There  being  no  error  or  irregularity 
in  the  court's  order  allowing  the  supplemental  complaint  to 
be  filed,  the  same  having  been  done  in  open  court,  and  a  copy 
of  the  same  having  been  served  upon  one  of  the  attorneys  of 
record  on  the  same  day  on  which  it  was  filed,  the  statute  re- 
quired an  answer  or  other  proper  pleading  to  be  filed  within 
twenty  days  from  the  date  of  such  fiiling,  and  in  the  event  of 
failure  to  plead,  or  secure  additional  time  to  plead,  neither  of 
which  were  done  in  this  case,  it  was  perfectly  regular  for  the 
court  to  render  decree.  Gregory  v.  Pike,  29  Fed.  Rep.  588. 
Appellants  seek  to  be  relieved  from  their  own  default  by  al- 
leging neglect  on  the  part  of  their  attorneys.  .  .  .  There 
being  service  of  a  copy  of  the  supplemental  complaint  upon 
one  of  the  attorneys  of  record  on  the  day  on  which  it  was  filed 
it  was  entirely  regular  for  the  court  to  render  the  decree  when 
applied  for  44  days  after  such  service,  in  the  absence  of  any 
appearance  or  pleading  by  the  appellants." 

Some  stress  is  laid  on  the  fact  that  the  Govenmient  ob- 
tained an  injunction  to  prevent  the  defendants  from  construct- 
ing its  reservoir  and  dam.  That  fact,  it  is  contended,  estops 
the  Government  from  relying  on  the  five-years'  limitation 
prescribed  by  the  above  act  of  March  3d,  1891,  c.  561.  But 
this  view  is  without  merit.  The  preliminary  injunction  re- 
ferred to  was  dissolved  July  31st,  1897,  and  was  never  rein- 
stated.    The  supplemental  bill  was  taken  as  confessed  on 


278  OCTOBER  TERM,  1909. 

Syllabus.  215  U.  8. 

May  21st,  1903,  and  a  perpetual  injunction  was  then  awarded 
against  the  defendants.  So  that  between  the  dissolution  of  the 
preliminary  injunction  and  the  granting  of  the  perpetual  in- 
junction more  than  five  years  elapsed,  during  which  the  de- 
fendants were  not  impeded  or  hindered  by  any  injunction 
against  them.  This  is  sufficient  to  show  that  the  point  just 
stated  is  without  merit.  We  need  not,  therefore,  consider 
the  larger  question,  whether  the  five-years'  limitation  pre- 
scribed by  Congress  in  the  above  act  of  March  3d,  1891,  could 
have  been  disregarded  or  enlarged  either  by  the  action  or  non- 
action of  the  parties  or  by  any  order  of  injunction  made  by 
the  court  in  the  progress  of  the  cause. 

There  are  some  minor  questions  in  the  case,  but  they  are 
not  of  substance  and  need  not  be  noticed.  We  perceive  no 
error  of  law  in  the  record,  and  the  judgment  is 

Affirmed. 

Mr.  Justice  McKenna  did  not  participate  in  the  con- 
sideration or  determination  of  this  case. 


f» 


UNITED  STATES  v,  CELESTINE. 

ERROR   TO   THE   CIRCUIT   COURT   OF   THE    UNITED   STATES   FOR 
THE   WESTERN   DISTRICT   OF   WASHINGTON. 

No.  236.    Argued  October  14,  1909.— Decided  December  13,  1909. 

Although  an  Indian  may  be  made  a  citizen  of  the  United  States 
and  of  the  State  in  which  the  reservation  for  his  tribe  is  located, 
the  United  States  may  still  retain  jurisdiction  over  him  for  offenses 
committed  within  the  limits  of  the  reservation;  and  so  held  as  to 
a  crime  committed  by  an  Indian  against  another  Indian  on  the 
Tulalip  Indian  Reservation  in  Washington,  notwithstanding  the 
Indians  had  received  allotments  under  the  treaties  with  the  Omahas 
of  March  16,  1834,  and  of  Point  Elliott  of  January  22,  1835.    Matr 


UNITED  STATES  v,  CELESTINE.  279 

215  U.  S.  Statement  of  the  Case. 

ter  of  Heff,  197  U.  S.  488,  distinguished,  the  Indian  in  that  case 
being  an  allottee  \inder  the  general  allotment  act  of  February  8, 
1887,  c.  119,  24  Stat.  388. 

L^slation  of  Congress  is  to  be  construed  in  the  interest  of  the  Indians; 
and,  in  the  absence  of  a  subjection  in  terms  of  the  individual  Indian 
to  state  laws  and  denial  of  further  jurisdiction  over  him  by  the 
United  States,  a  statute  will  not  be  construed  as  a  renunciation  of 
jurisdiction  by  the  United  States  of  crimes  committed  by  Indians 
against  Indians  on  Indian  reservations. 

The  act  of  May  8,  1906,  c.  2348,  34  Stat.  182,  extending  the  trust 
period  of  allottees  under  the  act  of  1887,  suggests  that  Congress 
believed  it  had  been  hasty  in  its  prior  action  in  granting  citizen- 
ship to  Indians. 

At  the  May  term,  1908,  of  the  Circuit  Court  of  the  United 
States  for  the  Western  District  of  Washington  an  indict- 
ment was  found  against  the  defendant,  the  first  coimt  of 
which  reads: 

*'That  one  Bob  Celestine,  an  Indian,  on  the  thirtieth  day 
of  August,  in  the  year  of  our  Lord  1906,  within  the  limits 
of  the  Tulalip  Indian  Reservation,  within  the  boundaries  of 
the  State  of  Washington,  and  within  said  Western  District 
of  Washington,  Northern  Division,  did,  with  force  and  arms, 
make  an  assault  upon  one  Mary  Chealco,  an  Indian  woman, 
with  an  axe,  which  the  said  Bob  Celestine  then  and  there 
held  in  his  hands,  and  did  then  and  there  feloniously,  willfully, 
knowingly,  and  with  malice  aforethought  strike,  beat,  and 
mortaUy  wound  said  Mary  Chealco  with  said  axe  upon  the 
head  of  the  said  Mary  Chealco,  with  intent  to  kill  and  murder 
her,  the  said  Mary  Chealco,  giving  to  her,  the  said  Mary 
Chealco,  a  mortal  wound  upon  the  head,  from  which  mortal 
woimd  said  Mary  Chealco  then  and  there  languished  and 
died,  within  said  Tulalip  Indian  Reservation,  in  said  Western 
District  of  Washington." 

The  second  count  is  in  similar  terms,  but  charges  in  addi- 
tion that  the  Tulalip  Indian  Reservation,  where  the  offense 
was  committed,  is  "a  place  under  the  exclusive  jurisdiction 
of  the  United  States." 


280  OCTOBER  TERM,  1909. 

Argument  for  the  United  States.  215  U.  S. 

By  a  special  plea  the  defendant  challenged  the  jurisdiction 
of  the  Circuit  Court,  alleging  that  at  the  time  of  the  ofifense 
there  had  been  allotted  to  him  as  the  head  of  a  family  certain 
lands  situate  on  the  Tulalip  Indian  Reservation,  within  the 
limits  of  the  State  (then  Territory)  of  Washington,  under 
the  provisions  of  the  treaty  of  January  22,  1855,  (12  Stat. 
927),  and  in  accordance  with  an  executive  order  of  Decem- 
ber 23,  1873,  and  that  a  patent  therefor  was  issued  and  de- 
livered to  him  on  May  19,  1885;  that  he  was  then  a  member 
of  the  Tulalip  tribe  of  Indians;  that  ever  since  that  date  he 
"has  been  and  still  is  a  citizen  of  the  United  States,  and 
therefore  subject  to  the  laws  of  the  Territory  and  State  of 
Washington;"  that  he  "was  bom  within  the  territorial  limits 
of  the  United  States  and  has  always  resided  within  such 
limits,"  and  that,  therefore,  he  was  entitled  to  "all' the  rights, 
privileges  and  immunities  of  said  citizens  of  the  United 
States." 

This  plea  also  alleged  that  the  murdered  woman  was  a 
citizen  of  the  United  States  and  the  widow  of  one  CheaJco 
Peter,  who,  like  the  defendant,  had  received  an  allotment 
of  land  within  the  Tulalip  Reservation,  and  a  patent  thereof 
similar  to  that  of  defendant;  that  she  became  entitled  to 
her  husband's  allotment  upon  his  death,  and  that  the  place 
of  the  commission  of  the  offense  was  upon  the  very  land 
allotted  to  said  Chealco  Peter,  and  without  the  jurisdiction 
of  the  court. 

A  demurrer  by  the  Government  to  the  plea  was  overruled 
and  judgment  entered  sustaining  the  plea. 

A  writ  of  error  to  this  court  was  then  sued  out  by  the 
United  States  under  authority  of  the  act  of  March  2,  1907, 
c.  2564,  34  Stat.  1246. 

Mr,  Assistant  Attorney  General  Harr  for  the  United  States: 

This  case  presents  squarely  for  the  first  time  in  this  court 

the  question  whether  jurisdiction  of  the  crime  of  murder 

committed  by  an  Indian  allottee  upon  allotted  land  of  an 


UNITED  STATES  v,  CELESTINE.  281 

215  U.  S.  Argument  for  the  United  States. 

Indian  reservation  in  a  State  is  vested  in  the  state  or  in  the 
Federal  courts.  A  determination  of  this  question  is  deemed 
important,  because  there  should  be  no  uncertainty  concern- 
ing a  matter  so  vital  to  the  successful  punishment  of  criminals. 
The  Tulalip  Reservation  was  a  legally  constituted  Indian 
reservation.  Re  Wilson,  140  U.  S.  575;  Draper  v.  United 
States,  164  U.  S.  240. 

The  United  States  has  authority  to  define  and  punish 
crimes  by  or  against  Indians  on  reservations  within  the 
States.  United  States  v.  Kagama,  118  U.  S.  375;  Draper  v. 
United  States,  164  U.  S.  240;  United  States  v.  Thomas,  151 
U.  S.  577;  Elk  v.  United  States,  177  U.  S.  529;  United  States 
V.  Bridleman,  7  Fed.  Rep.  894;  United  States  v.  Martin,  14 
Fed.  Rep.  817;  United  States  v.  Bamhart,  22  Fed.  Rep.  285. 

The  United  States  has  not  surrendered  its  criminal  juris- 
diction over  the  Tulalip  Reservation.  Matter  of  Heff,  197 
U.  S.  488,  distinguished. 

Exemption  from  Federal  jurisdiction  is  not  to  be  presumed 
in  absence  of  clear  legislative  provision.  Rxigles  v.  Illinois, 
108  U.  S.  526,  531. 

This  case  lacks  the  element  which  in  the  Heff  case  was 
declared  essential  to  confer  jurisdiction  upon  the  state  courts^ 
to  wit,  a  clear  Federal  legislative  provision  subjecting  the 
Indians  to  state  laws. 

The  act  of  May  8,  1906,  34  Stat.  182,  extending  to  the 
expiration  of  the  trust  period  the  date  when  allottees  under 
the  act  of  1887  shall  be  subject  to  the  state  laws,  and  omitting 
any  references  to  allottees  under  other  laws  and  treaties  is 
significant.  It  indicates  that  Congress  found  it  had  been  too 
hasty  in  placing  the  first-mentioned  allottees  under  the 
jurisdiction  of  the  State,  and  that  it  did  not  think  any  ex- 
tension of  time  necessary  as  to  allottees  under  other  acts 
and  treaties,  because  they  had  not  been  subjected  to  state 
laws. 

Citizenship  is  not  inconsistent  with  continued  Federal  juris- 
diction.   United  States  v.  Logan,  105  Fed.  Rep.  240;  United 


282  OCTOBER  TERM,  1909. 

Aiigiimeiit  for  the  United  States.  215  U.  S. 

States  V.  MvUin,  71  Fed.  Rep.  682;  Rainbow  v.  Young,  161 
Fed.  Rep.  835;  United  States  v.  Rickert,  188  U.  S.  432;  McKay 
V.  Kalyton,  204  U.  S.  458;  Beck  v.  Real  Estate  Co.,  65  Fed. 
Rep.  30;  Farrdl  v.  United  States,  110  Fed.  Rep.  942;  Coombs, 
Petitioner,  127  Massachusetts,  278;  State  v.  Denoyer,  6  N.  Dak. 
586. 

State  V.  Columbia  George,  39  Or^on,  127,  governs  this  ease. 
Columbia  George  was  tried  and  convicted  in  the  Federal 
court.  An  application  by  him  and  Toy  Toy,  with  whom 
he  was  jointly  indicted,  for  leave  to  file  a  petition  for  the 
writ  of  habeas  corpus,  was  denied  by  this  court,  201  U.  S. 
641.  Thereafter  a  petition  by  Toy  Toy  for  a  writ  of  habeas 
corpus  upon  the  ground  that,  as  he  was  a  citizen,  the  Federal 
court  was  without  jurisdiction,  was  denied  by  the  Circuit 
Court  and  its  action  affirmed  by  this  court  on  appeal,  212 
U.  S.  542. 

To  hold  that  the  Federal  coiuts  are  without  jurisdiction 
of  such  offenses,  after  the  state  courts  have  declined  to  exer- 
cise jurisdiction,  might  give  rise  to  a  serious  condition  of 
affairs. 

The  rule  contended  for  does  not  deprive  the  allottee  of  any 
of  the  rights  or  privileges'  of  citizenship.  It  is  not  contended 
that  a  limited  citizenship  is  conferred  upon  allottees,  but 
rather  that  citizenship  is  consistent  with  tribal  existence  and 
Indian  character.  United  States  v.  Red  Estate  Co.,  69  Fed. 
Rep.  886,  891. 

The  offense  in  question  was  committed  on  an  Indian 
reservation  within  the  meaning  of  the  act  of  March  3,  1885. 
Couture  v.  United  States,  207  U.  S.  581;  EeUs  v.  Ross,  64  Fed. 
Rep.  417,  and  see  United  States  v.  Floumoy  Co.,  71  Fed.  Rep. 
576;  United  States  v.  MuUin,  and  Rainbow  v.  Young,  supra. 
The  conclusion  that  allotted  land  is  not  thereby  excepted 
from  a  reservation  and  is  still  Indian  country  within  the 
intention  of  Congress,  seems  to  be  the  only  reasonable  and 
proper  one.  Otherwise  Federal  statutes  relating  to  reserva- 
tions and  the  Indian  country  and  punishing  crimes  therein 


UNITED  STATES  v.  CELESTINE.  283 

216  U.  S.  Opinion  of  the  Court. 

(Rev.  Stat.,  §§  2127-21/)7),  would  cease  to  apply,  and  thus 
Congress,  charged  with  the  duty  to  protect  the  Indians, 
would  be  held  to  have  abandoned  that  duty  entirely,  when 
in  fact  it  only  extended  to  them  the  privileges  of  citizenship. 

There  was  no  appearance  or  brief  for  the  defendant  in 
error. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

The  fourth  paragraph  of  the  act  of  March  2,  1907,  supra, 
authorizes  a  review  of  a  "decision  or  judgment  sustaining  a 
special  plea  in  bar,  when  the  defendant  has  not  been  put  in 
jeopardy."  The  defendant  in  this  case  had  not  been  put 
upon  trial,  therefore  he  had  not  been  in  jeopardy.  The  de- 
cision of  the  Circuit  Court  sustained  the  special  plea  in  bar. 
This  fourth  paragraph  differs  from  the  two  preceding,  in  that 
the  review  authorized  by  them  is  limited  to  cases  in  which 
"the  decision  or  judgment  is  based  upon  the  invalidity  or 
construction  of  the  statute  upon  which  the  indictment  is 
founded,"  while  no  such  limitation  appears  in  this  parar 
graph.  The  full  significance  of  this  difference  need  not  now 
be  determined,  but  clearly  the  fourth  paragraph  gives  to 
this  court  a  right  to  review  the  precise  question  decided  by 
a  trial  court  in  sustaining  a  special  plea  in  bar,  although 
that  decision  may  involve  the  application  rather  than  the 
invalidity  or  construction,  strictly  speaking,  of  the  statute 
upon  which  the  indictment  was  founded. 

The  general  provision  of  the  statutes  in  reference  to  punish- 
ment of  the  crime  of  murder  committed  within  the  exclusive 
jurisdiction  of  the  United  States  is  found  in  chap.  3,  Title  70, 
Rev.  Stat.,  §§  5339-5391,  as  amended  by  the  act  of  Janu- 
ary 15,  1897,  c.  29,  29  Stat.  487. 

Section  9  of  the  act  of  March  3,  1885,  c.  341,  23  Stat.  385, 
provides  for  the  punishment  of  certain  crimes  by  Indians, 
as  follows: 


284  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"That  immediately  upon  and  after  the  date  of  the  passage 
of  this  act  all  Indians,  committing  against  the  person  or 
property  of  another  Indian  or  other  person  any  of  the  follow- 
ing crimes,  namely,  murder,  manslaughter,  rape,  assault  with 
intent  to  kill,  arson,  burglary,  and  larceny  within  any  Terri- 
tory of  the  United  States,  .  .  .  and  all  such  Indians 
committing  any  of  the  above  crimes  against  the  person  or 
property  of  another  Indian  or  other  person  within  the  bound- 
aries of  any  State  of  the  United  States,  and  within  the  limits 
of  any  Indian  reservation,  shall  be  subject  to  the  same  laws, 
tried  in  the  same  courts  and  in  the  same  manner,  and  subject 
to  the  same  penalties  as  are  all  other  persons  committing  any 
of  the  above  crimes  within  the  exclusive  jurisdiction  of  the 
United  States." 

By  this  section  Indians  committing  against  other  Indians 
on  a  reservation  in  a  State  any  of  the  crimes  named  are  sub- 
ject to  Federal  laws  and  tried  in  Federal  courts. 

That  the  offense  was  committed  within  the  limits  of  the 
Tulalip  Indian  Reservation  is  distinctly  charged  in  the  in- 
dictment and  not  challenged  in  the  plea  in  bar.  Although 
the  defendant  had  received  a  patent  for  the  land  within  that 
reservation,  and  although  the  murdered  woman  was  the 
owner  of  another  tract  within  such  limits,  also  patented, 
both  tracts  remained  within  the  reservation  until  Congress 
excluded  them  therefrom. 

By  the  second  clause  of  §  3,  Art.  IV,  of  the  Constitution, 
to  Congress,  and  to  it  alone,  is  given  "power  to  dispose  of 
and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States." 
From  an  early  time  in  the  history  of  the  Government  it  has 
exercised  this  power,  and  has  also  been  legislating  concerning 
Indians  occupying  such  territory.  Without  noticing  prior 
acts,  it  is  sufficient  to  refer  to  that  of  June  30,  1834,  c.  CLXI, 
4  Stat.  729,  the  first  section  of  which  reads: 

''Beit  enacted,  That  all  that  part  of  the  United  States  west 
of  the  Mississippi,  and  not  within  the  States  of  Missouri  and 


UNITED  STATES  v,  CELESTINE.  285 

215  n.  S.  Opinion  of  the  Court. 

Louisiana,  or  the  Territory  of  Arkansas,  and,  also  that  part 
of  the  United  States  east  of  the  Mississippi  river,  and  not 
within  any  State  to  which  the  Indian  title  has  not  been 
extinguished,  for  the  purposes  of  this  act,  be  taken  and 
deemed  to  be  the  Indian  country." 

Construing  this  section,  it  was  decided,  in  Boies  v.  Clarkj 
95  U.  S.  204,  209,  that  all  the  country  described  in  the  act 
as  "Indian  country"  remains  such  "so  long  as  the  Indians 
retain  their  original  title  to  the  soil,  and  ceases  to  be  Indian 
country  whenever  they  lose  that  title,  in  the  absence  of  any 
different  provision  by  treaty  or  by  act  of  Congress."  The 
"  section  was  repealed  by  Rev.  Stat.,  §  5596.  Still,  it  was  held 
that  it  might  be  referred  to  for  the  purpoKO  of  determining 
what  was  meant  by  the  term  "Indian  country"  when  found 
in  sections  of  the  Revised  Statutes  which  were  re  enactments 
of  other  sections  of  prior  legislation.  Ex  parte  Crow  Dog, 
109  U.  S.  556;  United  States  v.  Le  Bris,  121  U.  S.  278.  But 
the  word  "reservation"  has  a  different  meaning,  for  while 
the  body  of  land  described  in  the  section  quoted  as  "Indian 
country"  was  a  reservation,  yet  a  reservation  is  not  neces- 
sarily "Indian  country."  The  word  is  used  in  the  land  law 
to  describe  any  body  of  land,  large  or  small,  which  Congress 
has  reserved  from  sale  for  any  purpose.  It  may  be  a  military 
reservation,  or  an  Indian  reservation,  or,  indeed,  one  for  any 
purpose  for  which  Congress  has  authority  to  provide,  and 
when  Congress  has  once  established  a  reservation  all  tracts 
included  within  it  remain  a  part  of  the  reservation  until 
separated  therefrom  by  Congress.  By  the  treaty  of  Janu- 
ary 22,  1855  (12  Stat.  927),  known  as  the  treaty  of  Point 
Elliott,  it  was  provided  that  certain  lands  should  be  reserved 
for  the  "use  and  occupation  of  the  Indians."  And,  further, 
article  3,  "that  the  President  may  establish  the  central 
agency  and  general  reservation  at  such  other  point  as  he  may 
deem  for  the  benefit  of  the  Indians."  On  December  23, 
1873,  the  President  established  the  boundaries  of  the  Tulalip 
Reservation  in  the  Territory  of  Washington.    The  tract  sub- 


286  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

eequently  allotted  to  defendant;  as  well  as  that  upon  which 
the  crime  was  committed,  are  within  the  boundaries  pre- 
scribed in  this  executive  order.  Article  7  of  the  treaty  of 
Point  Elliott  authorizes  the  President  to  set  apart  separate 
tracts  within  the  reservation  to  such  individuals  or  families 
as  were  willing  to  avail  themselves  of  the  privilege  and  locate 
on  the  same  as  a  permanent  home,  on  the  same  terms  and 
subject  to  the  same  regulations  as  are  provided  in  the  sixth 
article  of  the  treaty  with  the  Omahas,  so  far  as  the  same 
may  be  appUcable.  The  treaty  with  the  Omahas,  March  16, 
1854,  (10  Stat.  1043,)  provides  for  the  location  by  an  in- 
dividual or  family  on  land  within  the  Omaha  Reservation, 
its  assignment  for  a  permanent  home,  for  the  issue  of 
a  patent  to  such  person  or  family,  with  conditions  against 
aUenation  or  leasing,  exemption  from  levy,  sale  or  forfeiture, 
not  to  be  disturbed  by  the  State  without  the  consent  of 
Congress;  and,  further,  that  if  the  (p.  1045)  "person  or  family 
shall  at  any  time  neglect  or  refuse  to  occupy  and  till  a  por- 
tion of  the  lands  assigned  and  on  which  they  have  located, 
or  shall  rove  from  place  to  place,  the  President  may,  if  the 
patent  shall  have  been  issued,  cancel  the  assignment ;  .  .  . 
and  in  default  of  their  return  the  tract  may  be  declared 
abandoned,  and  thereafter  assigned  to  some  other  person  or 
family  of  such  tribe,  or  disposed  of  as  is  provided  for  the 
disposition  of  the  excess  of  said  land."  The  patent  issued 
to  the  defendant  recites  that  it  is  issued  under  the  provisions 
of  the  article  referred  to  in  the  treaty  with  the  Omaha  Indians. 
The  plea  does  not  challenge  the  continued  tribal  organiza- 
tion of  the  TulaUp  Indians,  or  question  that  the  tribe,  as 
well  as  the  general  body  of  the  reservation,  continues  under 
the  general  care  of  the  United  States.  Indeed,  at  the  time 
of  the  crime  the  TulaUp  Reservation  was  occupied  by  453 
Indians,  under  the  charge  of  an  Indian  agent.  Rep.  Com. 
Ind.  Affairs,  1906,  pp.  377,  483.  Thirteen  thousand  five 
hundred  and  sixty  acres  have  been  allotted  to  94  of  these 
Indians,  and  the  residue,  8,930  acres,  remains  unallotted. 


UNITED  STATES  v.  CELESTINE.  287 

215  U.  S.  Opinion  of  the  Court. 

Rep.  Com.  Ind.  Affairs,  1908,  p.  162.  The  fact  of  the  patent 
to  Chealeo  Peter  is  all  that  is  claimed  shows  a  want  of  juris- 
diction of  the  United  States  over  the  place  of  the  offense,  but 
the  conditions  of  the  treaty  with  the  Omahas,  made  by  refer- 
ence a  part  of  the  treaty  with  the  Tulalip  Indians,  providing 
for  only  a  conditional  alienation  of  the  lands,  make  it  clear 
that  the  special  jurisdiction  of  the  United  States  has  not  been 
taken  away. 

Eells  et  al.  v.  Ross  (12  C.  C.  A.  205,  Circuit  Court  of  Ap- 
peals of  the  United  States  for  the  Ninth  Circuit)  presented 
the  question  of  the  revocation  of  a  reservation.  The  treaty 
with  the  Puyallup  Indians  contains  like  provisions  in  regard 
to  alienation  and  forfeiture  as  are  in  the  treaty  with  the 
Omahas. 

Circuit  Judge  McKenna,  now  Mr.  Justice  McKenna  of  this 
court,  in  delivering  the  unanimous  opinion  of  that  court,  said 
(p.  207) : 

"  It  is  not  disputed  that  the  lands  are  a  part  of  those  set 
apart  as  the  Puyallup  Reservation,  and  that  the  reservation 
has  not  been  directly  revoked;  but  it  is  contended  that  the 
allotment  of  the  lands  in  severalty,  and  afterwards  making 
the  Indians  citizens,  necessarily  had  the  effect  to  revoke  the 
reservation.  There  is  plausibility  in  the  argument,  and  it 
needs  to  be  carefully  considered.  It  is  clear  that  the  allot- 
ment alone  could  not  have  this  effect,  {The  Kansas  Indians, 
5  Wall.  737)  and  citizenship  can  only  have  it  if  citizenship 
is  inconsistent  with  the  existence  of  a  reservation.  It  is  not 
necessarily  so. 

*'Some  of  the  restraints  of  a  reservation  may  be  inconsistent 
with  the  rights  of  citizens.  The  advantages  of  a  reservation 
are  not ;  and  if,  to  secure  the  latter  to  the  Indians,  others  not 
Indians  are  excluded,  it  is  not  clear  what  right  they  have  to 
complain.  The  act  of  1887,  which  confers  citizenship,  clearly 
does  not  emancipate  the  Indians  from  all  control,  or  abolish 
the  reservations." 

Dick  V.  United  States,  208  U.  S.  340,  docs  not  conflict  with 


288  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

these  views,  for  there  the  place  of  the  o£fense  was  the  village 
of  Culdesac,  which,  although  within  the  boundaries  of  the 
Nez  Perce  Reservation,  as  at  first  established,  was  located 
upon  lands  passed  by  patent  from  the  United  States  under 
the  townsite  laws  to  the  probate  judge  of  Nez  Perce  County, 
and  by  the  townsite  act  such  location  could  only  be  on  public 
lands.    Rev.  Stat.,  §  2380. 

But  it  is  contended  that  although  the  crime  may  have 
been  committed  on  an  Indian  reservation,  yet  it  does  not 
come  within  the  last  sentence  of  §  9  of  the  act  of  March  3, 
1885,  swpraj  by  reason  of  the  fact  that  both  defendant  and 
the  woman  murdered  held  patents  from  the  United  States, 
and  Matter  of  Heff,  197  U.  S.  488,  is  cited  as  authority.  But 
there  are  these  important  differences  between  the  two  cases. 
In  that  the  person  to  whom  the  defendant  sold  liquor  (the 
charge  being  that  of  selling  liquor  to  an  Indian)  had  received 
a  patent  under  the  provisions  of  the  act  of  Congress  of  Feb- 
ruary 8,  1887,  known  as  the  General  Allotment  Act  (c.  119, 
24  Stat.  388),  whereas  the  patents  in  this  case  were  issued 
under  the  authority  of  the  treaty  with  the  Omahas,  March  16, 

1854,  suyray  and  the  treaty  of  Point  Elliott,  January  22, 

1855,  swpra.  It  also  appeared  that  the  sale  was  made,  not 
on  any  reservation,  while  here  the  murder  was  committed 
within  the  limits  of  one. 

Section  5  of  the  act  of  February  8,  1887,  provides  (24  Stat. 
389)  "That  upon  the  approval  of  the  allotments  provided 
for  in  this  act  by  the  Secretary  of  the  Interior,  he  shall  cause 
patents  to  issue  therefor,"  etc.  Section  6  is  as  follows  (24 
Stat.  390) : 

"  Sec.  6.  That  upon  the  completion  of  said  allotments  and 
the  patenting  of  the  lands  to  said  allottees,  each  and  every 
member  of  the  respective  bands  or  tribes  of  Indians  to  whom 
allotments  have  been  made  shall  have  the  benefit  of  and  be 
subject  to  the  laws,  both  civil  and  criminal,  of  the  State  or 
Territory  in  which  they  may  reside;  and  no  Territory  shall 
pass  or  enforce  any  law  den)dng  any  such  Indian  within  its 


UNITED  STATES  v,  CELESTINE.  289 

215  U.  S.  Opinion  of  the  Court. 

jurisdiction  the  equal  protection  of  the  law.  And  every 
Indian  bom  within  the  territorial  Umits  of  the  United  States 
to  whom  allotments  shall  have  been  made  under  the  provi- 
sions of  this  act,  or  under  any  law  or  treaty,  and  every  Indian 
bom  within  the  territorial  limits  of  the  United  States  who 
has  voluntarily  taken  up,  within  said  limits,  his  residence 
separate  and  apart  from  any  tribe  of  Indians  therein,  and  has 
adopted  the  habits  of  civilized  life,  is  hereby  declared  to  be  a 
citizen  of  the  United  States,  and  is  entitled  to  all  the  rights, 
privileges,  and  immunities  of  such  citizens,  whether  said 
Indian  has  been  or  not,  by  birth  or  otherwise,  a  member  of 
any  tribe  of  Indians  within  the  territorial  limits  of  the  United 
States  without  in  any  manner  impairing  or  otherwise  affect- 
ing the  right  of  any  such  Indian  to  tribal  or  other  property.^' 

It  will  be  seen  that  the  first  sentence  of  the  latter  section, 
which  provides  that  the  allottees  shall  be  '*  subject  to  the 
laws,  both  civil  and  criminal,  of  the  State  or  Territory  in 
which  they  may  reside,"  applies  to  allotments  and  patents 
made  under  the  authority  of  that  act,  whereas  the  other 
sentence  refers  to  allotments  made  under  the  act  of  1887, 
or  under  any  law  or  treaty,  and  in  respect  to  the  allottee  it  is 
provided  only  that  he  "is  hereby  declared  to  be  a  citizen  of 
the  United  States,  and  is  entitled  to  all  the  rights,  privileges, 
and  unmunities  of  such  citizens.''  In  other  words,  so  far  as 
the  plea  is  concemed,  it  is  only  that  Celestine  was  a  citizen 
of  the  United  States,  and  entitled  to  all  the  rights,  privileges 
and  immunities  of  such  citizenship. 

We  assume,  without  deciding,  that  although  Celestine  was 
bom  within  the  territorial  Umits  of  the  United  States  he  was 
not,  under  the  first  section  of  the  Fourteenth  Amendment, 
a  citizen  of  the  United  States  prior  to  the  issue  of  the  patent 
to  him;  that  the  jurisdiction  of  the  United  States  was  over 
the  tribe  of  which  he  was  a  member,  and  not  over  him  per- 
sonally; so  that  by  the  act  of  1887  he  was  given  a  citizenship 
in  the  United  States  and  in  the  State  which  did  not  thereto- 
fore belong  to  him.  But,  although  made  a  citizen  of  the 
VOL.  ccxv— 19 


290  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

United  States  and  of  the  State,  it  does  not  follow  that  the 
United  States  lost  jurisdiction  over  him  for  oflfenses  com- 
mitted within  the  limits  of  the  reservation.  We  had  occa- 
sion in  the  Matter  of  Heff^  supra,  to  notice  the  fact  that  the 
first  dealings  with  Indians  were  with  them  as  tribes,  but  that 
of  late  there  had  been  a  change  in  the  policy  and  a  disposition 
to  put  an  end  to  tribal  organization  and  give  to  them  as 
individuals  all  the  rights  of  citizenship,  saying  (197  U.  S.  499) : 

"Of  late  years  a  new  policy  has  found  expression  in  the 
legislation  of  Congress — ^a  policy  which  looks  to  the  breaking 
up  of  tribal  relations,  the  establishing  of  the  separate  Indians 
in  individual  homes,  free  from  national  guardianship  and 
charged  with  all  the  rights  and  obligations  of  citizens  of  the 
United  States.  Of  the  power  of  the  Government  to  carry  out 
this  poUcy  there  can  be  no  doubt.  It  is  under  no  constitu- 
tional obligation  to  perpetually  continue  the  relationship  of 
guardian  and  ward.  It  may  at  any  time  abandon  its  guardian- 
ship and  leave  the  ward  to  assume  and  be  subject  to  all  the 
privileges  and  burdens  of  one  sui  juris.  And  it  is  for  Con- 
gress to  determine  when  and  how  that  relationship  of  guardian- 
ship shall  be  abandoned.  It  is  not  within  the  power  of  the 
courts  to  overrule  the  judgment  of  Congress.  It  is  true  there 
may  be  a  presumption  that  no  radical  departure  is  intended, 
and  courts  may  wisely  insist  that  the  purpose  of  Congress 
be  made  clear  by  its  legislation,  but  when  that  purpose  is 
made  clear  the  question  is  at  an  end.'' 

Notwithstanding  the  gift  of  citizenship,  both  the  defendant 
and  the  murdered  woman  remained  Indians  by  race,  and 
the  crime  was  committed  by  one  Indian  upon  the  person  of 
another,  and  within  the  limits  of  a  reservation.  Bearing  in 
mind  the  rule  that  the  legislation  of  Congress  is  to  be  con- 
strued in  the  interest  of  the  Indian,  it  may  fairly  be  held  that 
the  statute  does  not  contemplate  a  surrender  of  jurisdiction 
over  an  offense  conunitted  by  one  Indian  upon  the  person 
of  another  Indian  within  the  limits  of  a  reservation;  at  any 
rate,  it  cannot  be  said  to  be  clear  that  Congress  intended 


UNITED  STATES  v.  SUTTON.  291 

216  n.  S.  Syllabus. 

by  the  mere  grant  of  citizenship  to  renounce  entirely  its 
jurisdiction  over  the  individual  members  of  this  dependent 
race.  There  is  not  in  this  case  in  terms  a  subjection  of  the 
individual  Indian  to  the  laws,  both  civil  and  criminal,  of  the 
State;  no  grant  to  him  of  the  benefit  of  those  laws;  no  denial 
of  the  personal  jurisdiction  of  the  United  States. 

The  act  of  May  8,  1906,  c.  2348,  34  Stat.  182,  extending 
to  the  expiration  of  the  trust  period  the  time  when  the  al- 
lottees of  the  act  of  1887  shall  be  subject  to  state  laws,  is 
worthy  of  note  as  suggesting  that  Congress,  in  granting  full 
rights  of  citizenship  to  Indians,  believed  that  it  had  been 
hasty.  See,  upon  the  general  questions  discussed,  United 
States  V.  MvUin,  71  Fed.  Rep.  682;  Rainbow  v.  Young y  161 
Fed.  Rep.  835;  State  v.  Columbia  George,  39  Oregon,  127; 
State  V.  Columbia  George,  201  U.  S.  641;  Couture  v.  United 
States,  207  U.  S.  581;  Toy  Toy  v.  Hopkins,  212  U.  S.  542. 

The  judgment  is 

Reversed. 


•*%*• 


UNITED  STATES  v.  SUTTON. 

ERROR  TO  THE   DISTRICT  COURT  OF  THE   UNITED   STATES  FOR 
THE  EASTERN  DISTRICT  OF  WASHINGTON. 

No.  312.    Submitted  October  15,  1909.— Decided  December  20,  1909. 

United  SiaUa  v.  C destine,  anle,  p.  278,  followed,  as  to  continuance 
of  jurisdiction  of  United  States  over  offenses  committed  within 
the  limits  of  an  Indian  reservation. 

The  Indians,  as  wards  of  the  Government,  are  the  beneficiaries  of 
the  prohibition  against  the  introduction  of  liquor  into  Indian 
country;  and,  under  the  Washington  enabling  act,  jurisdiction  and 
control  over  Indian  lands  remains  in  tho  United  States,  and  Con- 
gress has  power  to  prohibit  and  punish  the  introduction  of  liquor 
therein. 


292  OCTOBER  TERM,  1909. 

Statement  of  the  Case.  215  U.  S. 

The  limits  of  an  Indian  reservation  are  not  changed  by  allotments 
in  severalty  during  the  trust  period,  and,  where  the  lands  allotted 
are  subject  to  restrictions  against  alienation  and  to  defeasance,  the 
prohibition  against  liquor  continues  to  be  effective. 

The  defendants  were  indicted  in  the  District  Court  of  the 
United  States  for  the  Eastern  District  of  Washington  for 
introducing  liquor  into  the  Indian  country,  as  thus  stated 
in  the  indictment: 

"To  wit,  into  and  upon  a  certain  Indian  allotment  No.  670, 
within  the  limits  of  the  boundary  of  the  Yakima  Indian  Reser- 
vation, in  the  Eastern  District  of  Washington,  which  said 
allotment  had  theretofore  been  allotted  to  a  certain  Indian, 
a  member  of  the  Yakima  tribe  of  Indians,  named  George 
Wesslikc,  under  and  by  virtue  of  the  provision  of  the  act  of 
Congress  of  February  8,  1887,  entitled  '  An  act  to  provide  for 
the  allotment  of  lands  in  severalty  to  Indians  on  the  various 
reservations,  and  to  extend  the  protection  of  the  laws  of  the 
United  States  and  the  Territories  over  the  Indians,  and  for 
other  purposes,'  (24  Stat.  388,)  said  allotment  being  then  and 
now  one  held  in  trust  by  the  Government  for  said  allottee 
and  being  inalienable  by  the  said  allottee  without  the  consent 
of  the  United  States." 

A  demurrer  was  filed,  and  on  that  demurrer  the  following 
facts  were  agreed  to: 

"1.  That  the  Yakima  Indian  Reservation,  in  the  Eastern 
District  of  Washington,  is  inhabited  by  the  Yakima  and 
other  Indians  under  the  general  charge  and  control  of  an 
Indian  agent  and  superintendent  of  the  United  States. 

"2.  That  prior  to  September  3,  1908,  a  very  large  number 
of  allotments  of  land  within  said  reservation  had  been  made 
to  Indians  entitled  thereto,  which  said  allotments  had  been 
made  and  allotted  under  and  by  virtue  of  the  provision  of 
the  act  of  Congress  of  February  8,  1887,  known  as  the  general 
allotment  act. 

"3.  That  allotment  No.  670,  described  in  the  indictment, 
is  a  part  of  and  within  the  boundaries  of  the  Yakima  Indian 


UNITED  STATES  v,  SUTTON.  293 

215  U.  S.  Statement  of  the  Case. 

Heservation,  and  the  same  had  been  made  and  allotted,  and 
the  usual  trust  patent  thereto  issued  to  the  allottee  named  in 
the  indictment  under  the  provision  of  the  act  of  February  8, 
1887,  prior  to  September,  1908. 

"4.  That  the  trust  limitation  has  not  yet  expired  and  the 
title  to  said  allotment  is  still  being  held  in  trust  by  the  Govern- 
ment; that  the  title  to  said  allotment  is  not  alienable  by  the 
allottee  without  the  consent  of  the  United  States. 

"5.  That  on  or  about  September  3,  1908,  the  defendants 
did  go  on  and  upon  said  allotment  described  in  the  indict- 
ment, taking  and  carrying  with  them  certain  ardent  spirits 
and  intoxicating  liquor,  to  wit,  alcohol,  in  a  demijohn  and 
flasks." 

The  indictment  was  founded  on  the  act  of  January  30, 
1897,  29  Stat.  506,  which  provides: 

"That  .  .  .  any  person  who  shall  introduce  or  attempt 
to  introduce  any  malt,  spirituous,  or  vinous  liquor,  including 
beer,  ale,  and  wine,  or  any  ardent  or  intoxicating  liquor  of 
any  kind  whatsoever  into  the  Indian  country,  which  term 
shall  include  any  Indian  allotment  while  the  title  to  the  same 
shall  be  held  in  trust  by  the  Government,  or  while  the  same 
shall  remain  inalienable  by  the  allottee  without  the  consent 
of  the  United  States,  shall  be  punished  by  imprisonment  for 
not  less  than  sixty  days,  and  by  a  fine  of  not  less  than  one 
hundred  dollars  for  the  first  offense  and  not  less  than  two 
hundred  dollars  for  each  offense  thereafter." 

The  Yakima  Reservation  was  established  under  the  treaty 
of  June  9,  1855, 12  Stat.  951,  which,  in  article  2,  provides: 

"  All  which  tract  shall  be  set  apart,  and,  so  far  as  necessary, 
surveyed  and  marked  out,  for  the  exclusive  use  and  benefit 
of  said  confederated  tribes  and  bands  of  Indians,  as  an  Indian 
reservation;  nor  shall  any  white  man,  excepting  those  in  the 
employment  of  the  Indian  Department,  be  permitted  to  re- 
side upon  the  said  reservation  without  permission  of  the  tribe 
and  the  superintendent  and  agent. 


294  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

"Article  VI.  The  President  may,  from  time  to  time,  at 
his  discretion,  cause  the  whole  or  such  portions  of  such  reser- 
vation as  he  may  think  proper,  to  be  surveyed  into  lots,  and 
assign  the  same  to  such  individuals  or  families  of  the  said 
confederated  tribes  and  bands  of  Indians  as  are  willing  to 
avail  themselves  of  the  privilege,  and  will  locate  on  the  same 
as  a  permanent  home,  on  the  same  terms  and  subject  to  the 
same  regulations  as  are  provided  in  the  sixth  article  of  the 
treaty  with  the  Omahas,  so  far  as  the  same  may  be  appli- 
cable." 

The  demurrer  was  sustained,  and  thereupon  the  Govern- 
ment brought  the  case  here  on  writ  of  error  under  the  act  of 
March  2,  1907,  c.  2564,  34  Stat.  1246. 

Mr.  Assistant  Attorney  General  Harr  for  the  United  States. 

There  was  no  appearance  or  brief  for  the  defendant  in 
error. 

Mr.  Justice  Brewer,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

The  question  whether  the  indictment  chains  any  oflFense 
against  the  laws  of  the  United  States  involves  the  validity  of 
the  act  of  January  30,  1897,  as  applied  to  the  facts  stated, 
and  therefore  the  case  is  one  properly  before  us  under  the  act 
providing  for  writs  of  error  in  certain  instances  in  criminal 
cases.  Ch.  2564,  34  Stat.  1246;  United  States  v.  Keitd,  211 
U.  S.  370,  397. 

We  have  recently  considered,  in  United  States  v.  Ceiestine, 
ante,  the  question  of  the  jurisdiction  of  the  United  States 
over  oflFenses  committed  within  the  limits  of  a  reservation, 
as  also  the  efifect  of  allotments  therein  upon  its  continued 
existence,  and  further  discussion  of  those  matters  is  unneces- 
sary. The  limits  of  the  Yakima  Reservation  were  not  changed 
by  virtue  of  the  allotments  that  are  referred  to  in  the  stipula- 


UNITED  STATES  v,  SUTTON.  295 

215  U.  S.  Opinion  of  the  Court. 

tion  of  facts.  The  lands  allotted  were  subject  to  restrictions 
against  alienation,  and  the  title  which  was  conferred  by  the 
allotments  was  subject  to  defeasance.  Sixth  Article,  Treaty 
with  the  Omahas,  10  Stat.  1043-5;  United  States  v.  C destine. 
The  offense  charged  was  not  one  committed  by  a  white  man 
upon  a  white  man,  United  States  v.  McBratney,  104  U.  S.  621; 
Draper  v.  United  States,  164  U.  S.  240,  or  by  an  Indian  upon 
an  Indian,  United  States  v.  Celestine,  ante,  but  it  was  the  intro- 
duction of  liquor  into  an  Indian  reservation.  In  this  offense 
neither  race  or  color  are  significant.  The  Indians,  as  wards 
of  the  Government,  are  the  beneficiaries,  but  for  their  pro- 
tection the  prohibition  is  against  all,  white  man  and  Indian 
alike.  Legislation  of  this  nature  has  been  for  a  long  time 
in  force.  Fourth  sec,  chap.  174,  Laws  1832,  4  Stat.  564; 
§2139,  Rev.  Stat.  If  the  Yakima  Reservation  were  within 
the  limits  of  a  Territory  there  would  be  no  question  of  the  val- 
idity of  the  statute  under  which  this  indictment  was  found, 
but  the  contention  is  that  the  ofifense  charged  is  of  a  police  na- 
ture and  that  the  full  police  power  is  lodged  in  the  State,  and 
by  it  alone  can  such  offenses  be  punished.  By  the  second 
paragraph  of  §  4  of  the  enabling  act  with  respect  to  the 
State  of  Washington,  (c.  180,  25  Stat.  677,)  the  people  of  that 
State  disclaimed  all  right  and  title  "to  all  lands  lying  within 
said  limits  owned  or  held  by  any  Indian  or  Indian  tribes; 
and  that  until  the  title  thereto  shall  have  been  extinguished 
by  the  United  States,  the  same  shall  be  and  remain  subject 
to  the  disposition  of  the  United  States,  and  said  Indian  lands 
shall  remain  under  the  absolute  jurisdiction  and  control  of 
the  Congress  of  the  United  States."  Construing  this,  in  con- 
nection with  other  provisions  of  the  enabling  act,  it  was  held 
in  Draper  v.  United  States,  164  U.  S.  240,  that  it  did  not  de- 
prive the  State  of  jurisdiction  over  crimes  committed  within 
a  reservation  by  others  than  Indians  or  against  Indians, 
following  in  this  United  States  v.  McBratney,  104  U.  S.  621. 
But  in  terms  "jurisdiction  and  control"  over  Indian  lands 
remain  in  the  United  States,  and  there  being  nothing  in  the 


296  OCTOBER  TERM,  1909. 

^Dabus.  215  XT.  S. 

section  withdrawing  any  other  jurisdiction  than  that  named 
in  Draper  v.  United  States,  undoubtedly  Ciongress  has  the 
right  to  forbid  the  introduction  of  liquor  and  to  provide 
punishment  for  any  violation  thereof.  Couture,  Jr.,  v.  United 
States,  207  U.  S.  581.  It  is  true  that  only  a  per  curiam  opin- 
ion was  filed  in  that  case,  and  the  judgment  was  affirmed  on 
the  authority  of  United  States  v.  Rickert,  188  U.  S.  432; 
McKay  v.  KalyUm,  204  U.  S.  458,  but  an  examination  of  the 
record  shows  that  its  facts  are  similar  to  those  in  the  present 
case.  See  also  an  opinion  by  Shiras,  District  Judge,  in  United 
States  V.  Midlin,  71  Fed.  Rep.  682,  and  one  by  Circuit  Judge 
Van  Devanter,  speaking  for  the  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit,  in  Rainbow  v.  Young,  161  Fed.  Rep.  835. 

Without  pursuing  the  discussion  further,  we  are  of  opinion 
that  the  District  Court  erred  in  its  ruling,  and  the  judgment 

is 

Reversed. 


■•♦^ 


COMMISSIONERS  OF  SANTA  FE  COUNTY  v.  TERRI- 
TORY OF  NEW  MEXICO  EX  REL.  COLER. 

SAME  V.  SAME. 

APPEALS  FROM  THE  SUPREME  COURT  OP  THE  TERRITORY  OP 

NEW  MEXICO. 

Nob.  42, 43.    Submitted  November  29, 1909.— Decided  December  20, 1909. 

Although  a  defense  to  the  merits  if  pleaded  in  the  original  action 
might  have  prevented  rendition  of  the  judgment,  it  cannot  be 
urged  to  prevent  mandamus  from  issuing  to  enforce  the  judgment. 

Under  the  laws  of  New  Mexico,  where  there  is  no  possible  excuse 
for  a  board  of  county  commissioners  not  to  comply  with  a  judgment, 
a  peremptory  writ  of  mandamus  in  the  first  instance  is  authorized. 

Where  the  bill  shows  it  is  clearly  the  purpose  of  defendant  officers 
not  to  perform  a  duty  imposed  upon  them,  demand  is  not  necessary 
before  suit  for  mandamus. 


SANTA  FE  COUNTY  v.  COLER.  297 

215  U.  S.  Argument  for  Appellant. 

Where  parts  of  a  county  have  been  detached  by  statute  which  pro- 
vides for  the  detached  portions  bearing  their  proportion  of  indebted- 
ness, the  counties  to  which  those  portions  are  attached  are  not 
necessary  parties  to  a  suit  to  recover  obUgations  of  the  original 
county.  After  judgment  the  original  county  which  is  primarily 
liable  may  enforce  contribution  through  the  proper  officers  for  the 
proportionate  share  of  the  detached  portions. 

In  this  case  it  was  held  that  the  facts  justified  the  amount  of  the 
tax  levy  required  by  the  writ  of  mandamus  as  modified  by  the 
Supreme  Coiurt  of  the  Territory. 

Practice  of  the  courts  in  a  Territory  is  based  upon  local  statutes  and 
procedure  and  this  coiurt  is  not  disposed  to  review  the  decisions  of 
the  Supreme  Court  of  the  Territory  in  such  cases,  and,  following  the 
Supreme  Court  of  the  Territory  of  New  Mexico,  this  court  holds  that 
the  power  of  that  court  to  affirm  or  reverse  and  remand  includes 
the  power  to  modify,  and  extends  to  proceedings  in  mandamus. 

14  New  Mexico,  134,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr,  A .  B.  Renehan  for  appellant : 

The  peremptory  writ  of  mandamus  should  not  have  been 
issued  without  a  hearing  or  opportunity  for  respondents 
to  be  heard.  The  writ  is  confined  to  the  requirement  of 
official  duties  of  a  ministerial  character.  2  SpelUng,  Ex.  Rem., 
§§  1432-1434,  1437. 

The  court  in  mandamus  proceedings  can  inquire  into  the 
original  judgment  so  far  as  to  ascertain  whether  the  claim 
is  legally  payable  out  of  the  taxes  sought  to  be  appfied. 
Railroad  Co.  v.  New  Mexico,  72  Pac.  Rep.  14;  Brownsville  v. 
Loague,  129  U.  S.  505. 

The  mandamus  cannot  be  issued  as  there  was  no  demand 
before  suit.  Spelling,  Ex.  Rem.,  §§  1381,  1447.  The  action 
should  have  been  directed  against  the  treasurer  of  the  county 
and  not  against  the  county  board.  Sections  4021,  4062,  C.  L. 
1897;  and  see  §343;  Bass  v.  Taft,  137  U.  S.  752;  Ex  parte 
Rowland,  104  U.  S.  615. 

Where  the  facts  are,  as  in  this  case,  disputed,  a  peremptory 
writ  cannot  issue  in  the  first  instance.    13  Ency.  PI.  &  Pr.  722; 


298  OCTOBER  TERM,  1909. 

Argument  for  Appellant.  215  U.  S. 

and  see  also  13  Ency.  PI.  &  Pr.  773-775;  StaU  v.  Goodfdlow, 
1  Mo.  App.  145. 

The  Supreme  Court  of  New  Mexico  had  no  jurisdiction  to 
modify  the  judgment  of  the  lower  court  by  changing  the 
theory  and  cause  of  action.  Under  C.  L.  1897,  §  897,  the 
power  of  the  appellate  court  is  limited  to  revising  or  modif3dng 
a  judgment  only  in  actions  at  law  or  equity  and  not  in  such 
proceedings  as  mandamus.  Territory  v.  County  CommiS' 
sionerSj  5  New  Mex.  17.  There  being  no  statute  in  the  Ter- 
ritory providing  for  jury  trials  in  mandamus  common-law 
procedure  governs  and  the  Supreme  Court  can  only  reverse 
or  affirm.  State  v.  Survannee  County,  21  Florida,  1 ;  Castle  v. 
Lawler,  47  Connecticut,  340;  and  see  §  10,  C.  L.  1897,  p.  43, 
act  of  September  30,  1850. 

The  remedy  given  by  the  statute,  §  343,  C.  L.  1897,  is  ex- 
clusive. Fourth  Nat.  Bank  v.  Francldyn,  120  U.  S.  751;  7 
Ency.  PI.  &  Pr.  372. 

The  pleading  being  on  information  and  belief  is  insufficient 
as  the  pleader  had  knowledge  of  the  facts.  Jones  v.  Pearl 
Mining  Co.,  20  Colorado,  417;  Nichols  v.  Hubert,  150  Missouri, 
620. 

The  counties  of  Rio  Arriba  and  Torrance  were  necessary 
parties  under  the  existing  laws  of  the  Territory.  Subsec- 
tion 5,  C.  L.  1897,  subs.  175;  §  6,  ch.  114,  L.  1905;  ch.  70, 
L.  1903;  ch.  24,  L.  1903;  ch.  20,  L.  1903. 

Under  the  act  of  June  8,  1878,  c.  168,  20  Stat.  101,  ex- 
planatory of  §  1889,  Rev.  Stat.,  the  Territory  was  prohibited 
from  issuing  these  bonds.  Lewis  v.  Pinia,  155  U.  S.  67. 
Although  held  valid  in  Coler  v.  County  Comnnssioners,  6  New 
Mex.  88,  the  question  of  their  vaUdity  under  the  act  was  not 
raised.  The  validating  act  of  June  16,  1897,  c.  30,  29  Stat. 
487,  although  construed  in  Utter  v.  Franklin,  172  U.  S.  498, 
does  not  validate  these  bonds  as  it  is  too  indefinite  to  de- 
termine which  bonds  are  vahdated.  There  is  no  element  of 
res  judicata  in  this  case.  The  judgments  are  not  attacked,. only 
the  method  of  enforcement  and  the  excessive  amount  of  the 


SANTA  FE  COUNTY  v.  COLER.  299 

215  U.  S.  Opinion  of  the  Court. 

levy.  RaiLvxayCo.  v.  Territory j  72  Pac.  Rep.  14;  United  States 
V.  Macon  County,  99  U.  S.  591;  BrovmsmUe  v.  Loague,  129 
U.  S.  502. 

Mr.  Charles  A.  Spiess  for  appellee. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

These  appeals  are  prosecuted  to  review  judgments  of  the 
Supreme  Court  of  New  Mexico,  modifsdng,  and  affirming  as 
modified,  judgments  of  mandamus  of  the  District  Court  of 
Santa  F6  County,  commanding  the  appellants  to  levy  a  tax 
of  ten  mills  in  each  case  on  each  dollar  of  taxable  property  in 
the  county,  to  pay  certain  judgments  for  the  amount  of  prin- 
cipal and  interest  upon  bonds  issued  by  the  county.  The 
cases  are  here  on  separate  records,  but  as  they  are  submitted 
together  we  dispose  of  them,  as  the  Supreme  Court  of  the 
Territory  did,  in  one  opinion. 

The  proceedings  were  commenced  by  petitions,  which  are 
alike,  except  as  to  the  amount  of  the  judgment  recovered. 
In  No.  42  it  is  alleged  to  be  $60,926.02;  in  No.  43  it  is  alleged 
to  be  $74,358.19.  Both  judgments  were  recovered  in  the 
District  Court  of  the  county  in  which  the  petitioners  (appel- 
lees here)  were  complainants  and  the  board  of  county  com- 
missioners were  defendants.  It  is  alleged  that  the  judgments 
ordered  the  sums  due  as  above  stated,  and  the  interest  thereon 
to  become  due  at  five  per  cent  per  annum  from  the  date  of 
the  judgments,  *'to  be  assessed  and  levied  upon  and  out  of 
the  taxable  property  situate  in  the  said  county  of  Santa  F6, 
and  to  cause  the  same  to  be  collected  in  the  manner  pro- 
vided by  law,  and  to  pay  the  same  out  of  the  treasury  of  said 
county  to  the  said  complainants,  their  legal  representatives  or 
assignees,  upon  the  delivery  of  a  proper  voucher  therefor." 
Default  in  the  payment  of  each  of  the  judgments  and  its 
requirements  is  alleged,  and  that  the  board  held  a  meeting 
during  the  month  of  July  or  August,  1905,  and  made  a  levy 


300  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

for  various  territorial  purposes,  but  "wholly  failed  and  re- 
fused to  make  any  levy  whatsoever,  and  still  fail  and  refuse 
to  make  any  levy  whatsoever,  for  the  said  year  of  1905,  for 
the  purpose  of  raising  funds  to  pay  the  aforesaid  judgment 
and  interest  and  costs  thereon."  The  want  of  a  plain,  speedy 
and  adequate  remedy  at  law  is  also  ^eged.  Peremptory 
writs  of  mandamus  were  issued  without  a  hearing. 

Subsequently  the  appellants  filed  a  petition  in  each  case 
in  the  District  Court  and  prayed  "that  the  peremptory  order 
be  suspended  herein,  and  that  they  be  permitted  to  show 
cause  and  be  heard  before  the  order  and  writ  are  made  per- 
manent." 

To  sustain  this  prayer  they  alleged  that  at  the  date  of  the 
rendition  of  the  judgments  of  appellees  all  of  the  property 
within  the  county  of  Santa  F6  subject  to  taxation  was  liable 
for  the  payment  of  its  pro  rata  of  the  judgments;  that  the 
thirty-fifth  legislative  assembly  "eliminated"  portions  of 
Santa  F6  County,  and  attached  them  respectively  to  the 
county  of  Rio  Arriba  and  the  county  of  Torrance,  and  made 
them  subject  to  their  proportions  of  the  indebtedness  of 
Santa  F€  County;  that  the  taxable  property  situate  therein 
is  liable  for  its  part  of  the  indebtedness;  that  the  county 
commissioners  are  without  jurisdiction  to  levy  and  assess 
taxes  upon  it,  and  that  the  peremptory  writs  include  only 
"the  property  and  territory  within  the  present  boundaries" 
of  Santa  F6,  and  do  not  pretend  to  include  that  in  Rio  Arriba 
and  Torrance;  that  by  a  mandamus  issued  out  of  the  district 
court  on  the  twenty-fifth  day  of  January,  1901,  the  county 
commissioners  were  required  to  levy  a  tax  upon  the  taxable 
property  in  Santa  F6  sufficient  in  amount  to  produce  a  sum 
of  $135,284.19,  with  interest  thereon  from  the  twenty-fourth 
of  September,  1900,  until  paid  at  five  per  cent  per  annum, 
and  $30.00  costs,  the  said  sum  being  for  the  amount  of  the 
judgments  in  cases  4091  and  4092  of  the  district  court  of 
Santa  F^  County;  that  the  board  obeyed  the  writ  and  levied 
eighty-two  mills  on  each  dollar  of  taxable  valuation,  and 


SANTA  FE  COUNTY  r.  COLER.  301 

215  U.  8.  Opinion  of  the  Ck>urt. 

certified  the  same  to  the  treasurer  and  ez  offijdo  tax  collector 
of  the  county^  and  directed  him  to  place  the  same  on  the  tax 
rolls  and  collect  in  the  manner  provided  by  law ;  that  the  levy 
is  still  standing  on  the  tax  rolls  of  the  county,  and  is  a  lien 
upon  the  taxable  property  of  the  county  as  then  existing, 
and  subject  to  the  payment  of  the  judgments;  that  the  com- 
missioners are  without  authority  to  enforce  the  same,  and 
that  the  levy  is  ample  and  sufficient  to  cover  the  amount  of 
the  judgments  in  cases  Nos.  4091  and  4092,  and  that  the  levy 
of  ten  mills  in  each  case  is  largely  in  excess  of  the  amount 
required,  and  is  "unjust  and  unfair"  to  the  taxpayers  of  the 
county  of  Santa  F6,  and  ruinous  to  its  "progress  and  pros- 
perity." It  is  alleged  that  the  board  is  entitled  to  be  heard 
on  the  amount  of  levy,  or  whether  any  levy  should  be  ordered, 
as  there  exists  a  legal  and  adequate  levy  to  cover  the  judg- 
ments; that  it  is  impossible  to  determine  the  amount  of  levy 
necessary  to  be  made  for  the  year  succeeding  1905  until  the 
tax  roll  for  that  year  has  been  completed  and  the  amount  of 
taxable  property  determined;  that  the  board  should  not  be 
held  in  default  until  the  time  shall  arrive  when  the  levy  can 
be  made,  and  they  shall  have  failed  to  perform  their  duty; 
that  the  levy  of  the  tax,  as  required  by  the  writ,  is  not  one 
which  the  law  "enjoins  as  a  duty  resulting  from  an  ofl5ce, 
trust  or  station,"  because  the  levy  of  eighty-two  mills,  when 
collected,  wiD  be  sufficient  to  pay  the  judgments,  and  that 
it  is  not  a  duty  of  the  board  to  collect  it,  but  "the  duty  of  the 
treasiu^r  and  ex  officio  tax  collector  of  Santa  F6  County." 
It  is  alleged  appellees  have  a  plain,  speedy  and  adequate 
remedy  at  law. 

As  an  additional  ground  of  the  motions,  it  is  alleged  that 
the  act  of  Congress,  by  which  the  bonds  are  "pretended  to 
have  been  validated,  approved,  and  confirmed,  is  inaefinite, 
uncertain,  and  incapable  of  reasonable  interpretation  and 
enforcement,  so  as  to  be  applied  to  any  bonds  issued  by  the 
county  of  Santa  F6,"  and  does  not  sufiiciently  identify  what 
bonds  are  intended  to  be  validated,  approved  and  confirmed; 


302  OCTOBER  TERM,  1909. 

OpiniiHi  of  the  Ck>urt.  215  U.  S. 

nor  what  holders  of  the  bonds,  it  being  alleged  that  they  "are 
subjects  of  different  ownership  and  are  not  all  in  the  hands  of 
one  person,  and  it  cannot  be  detennined  from  the  said  act  of 
Congress  what  holder  of  said  bonds,  in  excess  of  the  amount 
named  in  the  said  act  of  Congress,  shall  not  have  the  benefits 
of  validation/'  And  further,  that  at  the  time  of  the  passage 
of  the  act  of  Congress  there  was  more  than  one  refunding  act 
in  force  in  the  Territory,  but  what  refunding  act  is  referred  to 
by  the  act  of  Congress  is  not  disclosed. 

The  motions  to  suspend  the  peremptory  writs  were  denied 
and  the  orders  denying  them  were  affirmed  by  the  Supreme 
Court  of  the  Territory.  The  latter  court,  however,  modified 
the  writs,  as  will  be  presently  pointed  out. 

The  assignments  of  error  in  the  Supreme  Court  of  the  Terri- 
tory repeated  and  emphasized  the  grounds  urged  in  the 
motions  to  suspend  the  peremptory  writs  of  mandamus.  In 
this  court  the  modification  of  the  judgments  by  the  Supreme 
Court  of  the  Territory  is  attacked  and  some  new  contentions 
are  made. 

The  case  is  submitted  on  briefs,  and  we  shall  not  attempt 
to  trace  an  exact  correspondence  of  the  arguments  of  appel- 
lants with  the  assignments  of  error,  nor  indeed  shall  we  follow 
the  details  of  the  argument,  but  consider  those  matters  only 
which  we  think  can  in  any  way  affect  the  merits  of  the  con- 
troversy. It  will  be  observed  in  the  beginning  that  the  writs 
of  mandamus  issued  by  the  District  Court  are  but  the  execu- 
tion by  it  of  its  judgments  of  the  twenty-fourth  of  September, 
1900,  the  amounts  of  which  the  board  of  commissioners  were 
ordered  to  assess  against  the  taxable  property  of  the  county 
and  pay  the  same.  We  may  say,  therefore,  at  the  outset  that 
whatever  could  have  been  ui^ed  to  prevent  the  rendition  of 
the  judgments  cannot  now  be  ui^ed  to  prevent  their  enforce- 
ment. This  disposes  of  the  defense  made  against  the  orders 
under  review,  that  the  act  of  Congress  validating  the  bonds 
is  uncertain  and  indefinite,  even  if  it  had  merit  otherwise. 
The  objections  that  are  urged  against  the  act  of  Congress  are 


SANTA  FE  COUNTY  v.  COLER.  303 

216  U.  S.  Opinion  of  the  Court. 

that  it  cannot  be  understood  from  it  what  refunding  act  is 
referred  to,  there  being  two,  it  is  contended,  or  whether  all 
of  the  bonds  issued  under  it  have  been  vaUdated  or  only  an 
amount  thereof,  not  exceeding  $172,500.00,  and  if  no  more 
than  $172,500.00,  which  bonds  have  been  validated.  And 
it  is  urged  further  that  there  is  no  identification  of  what 
holders  of  the  bonds  in  excess  of  the  amount  named  in  the 
act  of  Congress  shall  not  have  the  benefits  of  the  validation. 
Manifestly  such  defenses  should  have  been  set  up  in  the 
original  actions  and  are  now  precluded  by  the  judgments 
therein  rendered.  It  is  established  by  the  judgments  that 
the  amount  of  bonds  issued  was  in  accordance  with  the  act 
of  Congress  and  was  not  excessive  in  amount,  and  also  that 
the  plaintiffs  in  the  action  (appellees  here)  were  legal  owners 
of  such  bonds  and  entitled  to  the  "benefits  of  vaUdation." 
Murphy  v.  Utter,  186  U.  S.  95,  113.  The  appellants,  there- 
fore, are  confined  to  the  other  objections  urged  by  them. 

The  principal  of  these  objections  is  that  peremptory  writs 
should  not  have  been  issued  without  a  hearing,  and  that  there 
should  have  been  a  demand  made  of  the  commissioners  before 
suit.  As  to  the  first,  it  may  be  said  that  it  probably  appeared 
to  the  District  Court  that  the  board  could  have  no  possible 
excuse,  and  in  such  case  a  peremptory  writ  is  authorized  in 
the  first  instance  by  the  laws  of  the  Territory.  By  §  2764  of 
the  Compiled  Laws  of  New  Mexico  for  the  year  1897  it  is  pro- 
vided that  "  when  the  right  to  require  the  performance  of  the 
act  is  clear,  and  it  is  apparent  no  valid  excuse  can  be  given 
for  not  performing  it,  a  peremptory  mandamus  may  be 
allowed  in  the  first  instance.'' 

The  second  ground  is  also  untenable.  The  original  judg- 
ments expressed  the  obligation  of  the  board.  They  imposed 
the  duty  of  levying  taxes  to  pay  them,  and,  it  is  alleged,  that 
the  board  had  levied  taxes  for  other  territorial  and  county 
purposes,  but  had  failed  and  refused  to  make  any  levy  what- 
ever to  pay  the  judgments.  In  other  words,  it  is  averred, 
that  it  is  clearly  the  purpose  of  the  board  not  to  perform  the 


304  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

duty  imposed  upon  it.  In  such  a  case  no  demand  is  necessaiy. 
Northern  Pacific  R.  R.  v.  Dwston,  142  U.  S.  492,  508. 

We  are  therefore  brought  to  the  consideration  of  the  suffi- 
ciency of  the  excuses  which  the  board  made  in  its  motions  to 
suspend  the  writs.  We  may  briefly  repeat  them:  (1)  that 
portions  of  Santa  F6  County  were  attached  to  other  counties, 
which  portions  are  subject  to  the  payment  of  the  judgments, 
and  that  the  board  is  without  jurisdiction  over  them;  (2) 
that  a  levy  of  eighty-two  mills  had  been  made,  which  is  a 
lien  upon  the  property  of  Santa  F6  County  "  as  then  existing," 
and  that  the  board  is  without  authority  to  enforce  the  collec- 
tion of  the  levy;  (3)  that  the  levy  of  twenty  mills  (ten  in  each 
case)  is  excessive;  (4)  that  the  board  was  entitled  to  be  heard 
as  to  the  amount  of  the  levy,  or  whether  any  levy  was  neces- 
sary, ''  there  existing  upon  the  tax  rolls  a  legal  and  adequate 
levy  to  cover"  the  judgments  which  it  is  the  duty  of  the  tax 
collector  to  collect;  (5)  that  it  was  impossible  to  determine 
the  amount  of  the  levy  necessary  for  the  year  succeeding  the 
year  1905  until  the  rolls  for  that  year  had  been  completed 
and  the  amount  of  taxable  property  determined;  (6)  that  the 
board  is  not  in  default  and  should  not  be  held  liable  until  in 
default. 

The  District  Court  evidently  considered  that  these  excuses 
were  without  substantial  merit,  and  such  also  was  the  view  of 
the  Supreme  Court  of  the  Territory.  To  the  first,  that  is  that 
the  portions  of  Santa  F£  County  which  had  been  s^regated 
from  it  should  have  been  included  in  the  writs,  it  was  replied 
by  the  Supreme  Court  that  it  was  provided  by  Chapter  20  of 
the  Session  Laws  of  1903  that  such  segr^ated  portions  were 
required  to  contribute  their  just  proportion  to  the  bonded 
debt  of  Santa  F6,  that  pro\ision  was  made  for  assessment, 
levy  and  collection  of  such  proportion  by  the  officers  of  the 
new  county  upon  the  order  of  the  old  county,  and  that  the 
money  collected  should  be  paid  into  the  treasury  of  the  old 
county.  It  was  therefore  decided  that  the  county  of  Santa 
F£  could  ''compel  contribution  from  the  two  other  counties 


SANTA  FE  COUNTY  v.  COLER.  305 

216  U.  S.  Opinion  of  the  Court. 

which  had  received  a  portion  of  its  territory,  in  proportion 
to  the  amount  of  taxable  property  received,  and  this  is  the 
method  provided  by  law."  This  view  of  the  statute  is  not 
directly  attacked  by  appellants,  and,  if  it  may  be  said  that 
the  general  argument  is  a  criticism  of  it,  the  answer  is  what 
was  said  in  English  v.  Arizona,  214  U.  S.  369,  363,  that  "un- 
less in  a  case  of  manifest  error,  this  court  will  not  disturb  a 
decision  of  the  Supreme  Court  of  a  Territory  construing  a 
local  statute."  Chapter  20  of  the  Session  Laws  of  1903  is  an 
answer  also  to  other  contentions  of  appellants.  If  the  county 
of  Santa  F6  is  primarily  liable  for  the  bonds  she  is  the  proper 
party  to  an  action  upon  them,  and  through  her  officers  the 
payment  of  the  judgments  recovered  can  be  enforced.  The 
contention  of  appellants,  therefore,  that  the  counties  of  Rio 
Arriba  and  Torrance  are  "necessary  parties  to  a  complete 
determination  of  the  case,"  is  untenable,  as  indeed  all  other 
contentions  that  are  based  upon  the  addition  to  those  counties 
of  portions  of  Santa  F6  County. 

The  most  serious  contentions  of  appellants  are  that  the 
levy  of  eighty-two  mills  was  sufficient  to  pay  the  judgments, 
interest  and  costs,  and  that  the  levy  of  twenty  mills  in  addi- 
tion was  excessive.  We  think,  however,  that  the  reply  made 
by  the  Supreme  Court  of  the  Territory  adequately  disposed 
of  them.  The  learned  court  pointed  out  that  the  resolution 
of  the  board  of  county  commissioners,  a  copy  of  which  appears 
in  the  record,  showed  that  the  levy  of  eighty-two  mills  had 
the  purpose  only,  and  was  sufficient  only,  to  pay  the  then 
amount  of  the  judgments,  together  with  interest.  It  was 
further  pointed  out  that  the  interest  to  accrue  was  not  pro^ 
vided  for,  and  that  it  amounted  on  the  day  when  the  peremp- 
tory writs  of  mandamus  were  issued  to  $32,874.05.  It  fol- 
lows necessarily,  as  the  court  said,  that  the  contention  that 
the  eighty-two  mills  levied  was  sufficient,  "is  unfounded  and 
untrue  in  fact."  To  the  contention  that  the  twenty  mills 
levied  are  excessive,  in  that  they  are  more  than  sufficient  to 
pay  $32,874.05,  the  court  replied  that,  if  this  were  so,  the 
VOL.  ccxv — 20 


306  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  TJ.  S. 

peremptory  writs  should  not  have  been  issued.  But,  the 
court  added,  it  is  not  shown  that  the  assessable  value  of  prop- 
erty in  Santa  F6  County  has  increased,  while  it  does  appear 
on  the  other  hand  that  portions  of  the  county  had  been  cut 
off;  therefore,  it  was  said,  it  is  fair  to  presume  *'that  the 
assessed  valuation  of  the  county  is  not  in  excess  of  what  it 
was  in  1901,  when  the  eighty-two  mills  levy  was  made." 
From  this  presumption  it  was  concluded  that  twenty  mills 
would  produce,  if  collected  in  full,  $32,996.00,  an  excess  only 
of  $112.05.  And  it  was  observed  that  since  the  peremptory 
writs  were  issued  interest  had  accrued  to  the  amount  of 
$10,000.00. 

The  writs  required  not  only  the  levy  of  twenty  mills  for 
the  year  1905,  but  for  each  and  every  year  thereafter  and 
until  the  judgments  with  interest  and  costs  be  paid.  This 
the  Supreme  Court  pronounced  error,  and  modified  the  judg- 
ments by  striking  out  the  requirements  for  a  continuous  levy. 
This  appellants  assign  as  error,  contending  that  the  Supreme 
Court  had  no  jurisdiction  to  modify  the  judgments  of  the 
lower  court,  and  that  by  doing  so  it  changed  the  "theory  and 
cause  of  action.''  The  argument  to  sustain  the  contention  is 
somewhat  roundabout.  Exclusive  original  jurisdiction  in 
mandamus,  it  is  said,  is  conferred  on  the  District  Court  by 
§  2771  of  the  laws  of  the  Territory,  and,  while  an  appeal  lies 
to  the  Supreme  Court  as  in  other  civil  actions  (§  2772),  that 
the  power  of  the  court  to  modify  the  judgment  of  a  district 
court,  given  by  §  897,^  does  not  extend  to  a  judgment  in 

^  ^^  In  all  cases  now  pending  in  the  Supreme  Court  or  which  may 
be  hereafter  pending  in  the  Supreme  Court,  and  which  may  have 
been  tried  by  the  equity  side  of  the  court,  or  which  may  have  been 
tried  by  a  jury  on  the  common  law  side  of  the  court,  or  in  which  a 
jury  may  have  been  waived  and  the  case  tried  by  the  court  or  the 
judge  thereof,  it  shall  be  the  duty  of  the  Supreme  Court  to  look  into 
all  the  rulings  and  decisions  of  the  court  which  may  be  apparent  upon 
the  records,  or  which  may  be  incorporated  in  the  bill  of  exceptions, 
and  pass  upon  all  of  them  and  upon  the  errors  if  any  shall  be  found 
therein,  in  the  rulings  and  decisions  of  the  court  below,  grant  a  new 


SANTA  FE  COUNTY  v,  COLER.  307 

215  U.  S.  Opinion  of  the  Court. 

mandamus.  The  jurisdiction  of  the  Supreme  Court,  it  is 
urged,  *'was  simply  to  aflSrm  or  reverse  and  remand."  This, 
it  will  be  observed,  is  very  general.  It  would  seem  even  to 
imply  that  the  Supreme  Court  has  not  even  the  power  of  di- 
rection, but  must  leave  the  District  Court  to  get  right  ulti- 
mately through  successive  judgments,  appeals  and  reversals. 
And  the  anomaly  is  attempted  to  be  sustained  by  sajdng  that 
mandamus  is  not  included  in  the  useful  power  given  to  the 
Supreme  Court  by  §  897  in  cases  taken  to  it  to  "  render  such 
other  judgment  as  may  be  right  and  just  and  in  accordance 
with  law,"  because,  it  is  said,  that  mandamus  "is  not  a  case 
on  the  equity  side  of  the  court,  nor  is  it  one  tried  on  the  law 
side  with  a  jury,  nor  is  it  one  in  which  a  jury  has  been  waived 
and  trial  had  by  the  court  or  judge,  especially  as  concerns  the 
present  proceeding."  This  is  a  misunderstanding  of  the 
statute.  Its  purpose  is  to  not  only  give  the  power  to  review, 
but  to  prevent  its  defeat  through  the  distinction  between 
causes  of  action  and  modes  of  trial.  Further  argument  is 
unnecessary.  Even  if  the  contention  had  grounds  of  support 
it  would  be  answered  by  the  case  of  English  v.  Arizona,  214 
U.  S.  359,  and  the  case  of  Arviijo  v.  Armijo,  181  U.  S.  558, 
561.  In  the  latter  case  we  said  that  practice  "in  the  courts 
of  the  Territory  is  based  upon  local  statutes  and  procedure, 
and  we  are  not  disposed  to  review  the  decision  of  the  Supreme 
Court  in  such  cases.  Sweeney  v.  Lomme,  22  Wall.  208."  Of 
the  other  contentions  of  appellants,  it  is  enough  to  say  that 
they  are  without  merit. 

Judgments  affirmed, 

trial  or  render  such  other  judgment  as  may  be  right  and  just,  and 
in  accordance  with  law;  and  said  Supreme  Court  shall  not  decline  to 
pass  upon  any  question  of  law  or  fact  which  may  appear  in  any  record 
either  upon  the  face  of  the  record  or  in  the  bill  of  exceptions,  because 
the  cause  was  tried  by  the  court  or  judge  thereof  without  a  jury,  but 
shall  review  said  cause  in  the  same  manner  and  to  the  same  extent 
as  if  it  had  been  tried  by  a  jury." 


308  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 


ILLINOIS  CENTRAL  RAILROAD  COMPANY  v. 

SHEEGOG. 

ERROR  TO  THE  COURT  OF  APPEALS  OF  THE  STATE  OF 

KENTUCKY. 

No.  41.    Argued  December  12,  1909.— Decided  December  20,  1909. 

Where  the  joinder  of  the  resident  and  the  non-resident  defendants 
prevents  removal  to  the  Federal  court,  the  fact  that  on  the  trial 
the  jury  finds  against  the  non-resident  defendant  only  has  no 
bearing  on  the  question  of  removal  if  the  joinder  was  not  fraudulent. 

Allegations  of  fact,  so  far  as  material  in  a  petition  to  remove,  if  con- 
troverted, must  be  tried  in  the  Federal  court,  and  therefore  must 
be  taken  to  be  true  when  the  state  court  fails  to  consider  them. 

A  plaintiff  may  sue  the  tort-feasors  jointly  if  he  sees  fit,  regardless  of 
motive,  and  an  allegation  that  resident  and  non-resident  tort- 
feasors are  sued  for  the  purpose  of  preventing  removal  to  the  Fed- 
eral court  is  not  a  sufficient  allegation  that  the  joinder  was  fraudu- 
lent. 

A  lessor  raihx)ad  company  remains  responsible,  so  far  as  its  duty  to 
the  pubUc  is  concerned,  notwithstanding  it  may  lease  its  road,  unless 
relieved  by  a  statute  of  the  State. 

Whether  defendants  can  be  sued  jointly  as  tort-feasors  is  for  the 
state  court  to  decide;  and  so  held  that,  where  the  state  court  decides 
that  a  lessor  road  in  that  State  is  responsible  for  keeping  its  road- 
bed in  order,  the  joinder  of  both  lessor  and  lessee  roads  in  a  suit  for 
damages  caused  by  imperfect  roadbed  and  management  is  not 
fraudulent  and  the  lessee  road,  although  non-resident,  cannot 
remove  if  the  lessor  road  is  resident. 

126  Kentucky,  252,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edmund  F,  Trdbite,  with  whom  Mr.  John  C.  Doolan, 
Mr.  AtHUa  Cox,  Jr,,  and  Mr.  Blewett  Lee  were  on  the  brief, 
for  plaintiff  in  error : 

The  lessor  and  conductor  were  joined  as  petitioner's  co- 


ILLINOIS  CENTRAL  R.  R.  CO.  v,  SHEEGOG.     309 
215  U.  S.  Argument  for  Plaintifif  in  E^rror. 

defendants  solely  to  prevent  a  removal  to  the  Federal  court, 
and  the  trial  court  sustained  their  motions  for  peremptory 
instructions  in  their  favor,  and  plaintiff  below  prosecuted 
no  appeal  from  these  judgments,  but  abandoned  his  case 
as  to  them  both. 

The  allegations  of  fact  in  a  petition  for  removal  must  be 
accepted  by  the  state  court  as  true,  because  an  issue  on  such 
allegations  can  be  tried  only  in  the  Federal  court.  Railway 
V.  Dunn,  122  U.  S.  513,  517;  Plymouth  v.  Amador  Co,,  118 
U.  S.  264,  270;  Louisville  R.  R.  Co.  v.  Wangdin,  132  U.  S. 
599;  Alabama  GL  Southern  Ry,  Co.  v.  Thompson,  200  U.  S. 
218;  Wecker  v.  Naticmal  Co.,  204  U.  S.  176;  Chesapeake  & 
Ohio  Ry.  Co.  v.  McCabe,  213  U.  S.  207;  Dow  v.  Bradstreet, 
46  Fed.  Rep.  824;  Arrowsmith  v.  Railroad  Co.,  57  Fed.  Rep. 
165;  Diday  v.  Railway  Co.,  107  Fed.  Rep.  565;  Union  Co.  v. 
C,  B.  &  Q.  R.  R.  Co.,  119  Fed.  Rep.  209;  Kelly  v.  C.  &  A.  R. 
Co.,  122  Fed.  Rep.  286;  Gustafsm  v.  Railway  Co.,  128  Fed. 
Rep.  85;  Dishcm  v.  C,  N.  0.  &  T.  P.  Ry.  Co.,  133  Fed.  Rep. 
471;  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  Rep.  650,  668 
(certiorari  denied,  198  U.  S.  586) ;  South  Dakota  Co.  v.  Cin. 
&  St.  P.  Ry.  Co.,  141  Fed.  Rep.  578,  581;  Thomas  v.  Great 
North.  Ry.  Co.,  147  Fed.  Rep,  83,  86;  Atlanta,  K.  &  N.  Ry. 
Co.  V.  S(m.  Ry.  Co.,  153  Fed.  Rep.  122,  126;  M'Guire  v.  Great 
North.  Ry.  Co.,  153  Fed.  Rep.  434,  439;  Politz  v.  Wabash 
Ry.  Co.,  153  Fed.  Rep.  941 ;  M'Alister  v.  Ches.  &  Ohio  Ry. 
Co.,  157  Fed.  Rep.  740,  743;  Harrington  v.  Gt.  Nor.  Ry.  Co., 
169  Fed.  Rep.  714;  Donovan  v.  WeUs,  Fargo  &  Co.,  169  Fed. 
Rep.  363. 

The  state  court,  therefore,  had  no  jurisdiction  to  try  or 
determine  the  question  of  fact  tendered  by  the  petition  for 
removal,  much  less  to  try  it  on  evidence  heard  only  on  the 
merits.  Rviherford  v.  /.  C.  R.  R.  Co.,  120  Kentucky,  15; 
Cdey  V.  7.  C.  jB.  R.  Co.,  121  Kentucky,  385;  Dudley  v.  /.  C. 
R.  R.  Co.,  127  Kentucky,  221;  Underwood  v.  I.  C.  R.  R.  Co., 
31  Ky.  L.  R.  595,  holding  that  the  state  court  may  try  issues 
of  fact  upon  a  petition  for  removal,  is  a  doctrine  unsound  in 


310  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  8. 

principle  and  in  conflict  with  the  decisions  of  this  court  and 
all  of  the  other  Federal  courts. 

Where  the  plaintiff  joins  as  the  real  defendant's  co- 
defendants  persons  known  to  be  improper  parties  and  fabri- 
cates averments  concerning  them  in  order  to  misstate  their 
connection  with  the  case,  a  petition  for  removal  in  alleging 
fraud  in  the  joinder  of  the  improper  defendants  may  aver  the 
untruth  of  the  plaintiff's  averments,  otherwise  the  right  of 
removal  to  the  Federal  court  might  always  be  frustrated  by 
the  plaintiff  ad  libitum;  and  the  courts  will  be  astute  to  pre- 
vent such  devices.  Miller,  J.,  4  Dill.  277  (cited  in  57  Fed. 
Rep.  169),  and  see  Crawford  v.  /.  C.  Ry.  Co.,  130  Fed.  Rep. 
395;  C,  R.  L  &  P.  Ry.  Co.  v.  Stepp,  151  Fed.  Rep.  908,  and 
other  cases  cited  supra. 

Although  the  state  court  was  without  jurisdiction  to  try 
an  issue  of  fact  upon  the  petition  for  removal  and  the  assump- 
tion of  the  state  court  to  pass  upon  the  truth  of  the  aver- 
ments of  such  petition  of  itself  entitles  the  Illinois  Central 
to  a  reversal  of  the  judgment  now  assailed,  nevertheless  the 
same  result  would  follow  a  consideration  of  the  case  which 
the  state  court  assumed  to  try  as  arising  upon  the  record, 
because  it  is  demonstrable  from  the  opinion  itself  that  the 
state  court  was  not  justified  in  holding  that  the  derailment 
of  the  engine  was  the  proximate  result  of  the  failure  of  the 
lessor  to  perform  its  public  duty  in  its  failure  to  construct 
safe  roadbed. 

This  unwarrantable  speculation  is  too  far-fetched  to  justify 
the  joinder  of  the  Kentucky  Company  upon  the  assumption 
that  the  supposed  condition  of  its  track  caused  the  wreck 
in  any  such  fantastic  way  as  suggested  by  the  state  court. 
Neeling  v.  C,  St.  P.  &  K.  R.  R.  Co.,  98  Iowa,  554;  Cox  v. 
C.  &  N.  W.  Ry.  Co.,  102  Iowa,  711. 

If  the  state  court  had  had  jurisdiction  to  try  the  truth  of 
the  averments  of  the  petition  for  removal  it  must  have  heard 
witnesses  to  that  end.  Instead  of  so  doing  the  state  court 
tried  the  Illinois  Central's  averments  on  jurisdiction  by  evi- 


ILLINOIS  CENTRAL  R.  R.  CO.  r.  SHEEGOG.     311 
215  U.  S.  Argument  for  Defendant  in  Error. 

dence  upon  the  merits,  and  as  if  it  were  trying  the  liability 
of  the  Kentucky  Company,  which  had  previously  been  dis- 
missed. Its  judgment  is,  therefore,  reversible  from  any 
standpoint. 

Defendant  in  error's  case  against  the  plaintiff  in  error  is 
a  distinct  cause  of  action  on  which  a  separate  suit  might  be 
brought  and  complete  relief  afforded  without  any  other  party 
in  court.    Barney  v.  Latham,  103  U.  S.  205. 

Permission  of  state  practice  to  join  defendants  does  not 
prevent  a  separable  controversy  between  plaintiff  and  one 
of  them.  KeUy  v.  Railroad  Co,,  122  Fed.  Rep.  286,  291; 
WiUiard  v.  Railroad  Co.,  124  Fed.  Rep.  796,  801;  Yates  v. 
Railroad  Co,,  137  Fed.  Rep.  943;  Iowa  Ry,  Co,  v.  Bliss,  144 
Fed.  Rep.  446;  Manufacturing  Co,  v.  Brown,  148  Fed.  Rep. 
308;  Scmth  Dakota  Co,  v.  Railway  Co,,  141  Fed.  Rep.  578, 
581;  Stockton  v.  Oregon  Short  Line,  170  Fed.  Rep.  627,  633; 
WaUin  v.  Reagan,  171  Fed.  Rep.  758,  763. 

State  legislation  cannot  control  Federal  jurisdiction.  Hyde 
V.  Stone,  20  How.  170,  175;  Smyth  v.  Ames,  169  U.  S.  466; 
Brau)  V.  Wabash,  164  U.  S.  271. 

Mr.  John  G.  Miller,  with  whom  Mr,  P.  B,  Miller  was  on  the 
brief,  for  defendant  in  error: 

Case  is  not  removable  until  the  record  on  its  face  shows 
facts  which  give  the  Federal  court  jurisdiction.  Ex  parte 
Wisner,  203  U.  S.  449;  Kinney  v.  Columbia  Sav.  &  Loan  Asso,, 
191  U.  S.  78. 

If  the  case  be  not  removed,  the  jurisdiction  of  the  state 
court  remains  unaffected;  and  under  the  act  of  Congress  the 
jurisdiction  of  the  Federal  court  could  not  attach  until  it 
becomes  the  duty  of  the  state  court  to  proceed  no  further. 
Crehore  v.  M,  &  0,  Ry,  Co,,  131  U.  S.  240;  Stone  v.  South 
Carolina,  117  U.  S.  430;  Carsm  v.  Hyatt,  118  U.  S.  279; 
Stevens  v.  Nichols,  130  U.  S.  230;  Phoenix  Ins,  Co,  v.  Pechner, 
95  U.  S.  183;  National  Steamship  Co,  v.  Tugman,  106  U.  S. 
118;  B,  &  0.  R,  R,  Co,  v.  Koontz,  104  U.  S.  514. 


312  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  Error.  215  XJ.  S. 

The  controversy  must  be  wholly  between  citizens  of  different 
States  in  order  to  remove  the  case,  and  such  is  not  the  case 
when  one  or  more  defendants  jointly  sued  are  citizens  of  the 
same  State  with  plaintiflF.  Core  v.  Vinaly  117  U.  S.  347; 
Chesapeake  v.  Ohio  R.  R.  Co.,  179  U.  S.  131;  Powers  v.  C. 
&  0.  fi.  R.  Co.,  169  U.  S.  92;  Alabama  G.  S.  R.  R.  Co.  v. 
Thompson,  200  U.  S.  206;  C,  N.  0.  &  T.  P.  R.  R.  Co.  v. 
Bohon,  200  U.  S.  221. 

If  the  act  of  an  individual  is  within  the  terms  of  the  law, 
whatever  may  be  the  reasons  which  govern  him,  or  whatever 
may  be  the  result,  it  cannot  be  impeached.  Doyle  v.  Corh 
tinental  Ins.  Co.,  94  U.  S.  535;  Prewitt  v.  Mut.  Life  Ins.  Co., 
115  Kentucky,  26. 

Plaintiff's  motive  in  the  performance  of  a  lawful  act  was  not 
open  to  inquiry.    C.  &  0.  R.  R.  Co.  v.  Dixon,  179  U.  S.  131. 

The  construction  given  to  the  statute  of  the  State  by  the 
highest  tribunal  of  the  State  is  regarded  as  part  of  the  statute 
and  is  binding  upon  the  courts  of  the  United  States  as  a  text. 
Leffingwell  v.  Warren,  2  Black,  599;  Com.  Bank  v.  Bucking- 
ham,  5  How.  317;  Jackson  v.  Lamphire,  3  Pet.  280. 

When  the  highest  judicial  tribunal  of  a  State  has  deter- 
mined the  extent  of  the  powers  and  liabilities  of  corporations 
created  under  its  laws,  the  decision  is  conclusive  on  the 
national  courts  in  all  cases  in  which  no  question  of  general 
or  commercial  law  and  no  question  of  right  under  the  Consti- 
tution of  the  United  States  is  involved.  See  92  Fed.  Rep.  124; 
Claybome  v.  Brooks,  111  U.  S.  400;  Detroit  v.  Osborne,  135 
U.  S.  499;  GUman  v.  ShOxyygan,  2  Black,  510;  L.  &  N.  R.  R. 
Co.  V.  Kentucky,  183  U.  S.  508;  Connell  v.  Utica  E.  R.  R.  Co., 
13  Fed.  Rep.  241 ;  C.  cfe  0.  Ry.  Co.  v.  Dixon,  179  U.  S.  131 ; 
SoiUhem  Ry.  Co.  v.  Carsm,  194  U.  S.  136;  Alabama  G.  S.  R. 
Co.  V.  Thompson,  200  U.  S.  206;  Cin.,  N.  0.  &  T.  P.  R.  R.  Co. 
V.  Bohon,  200  U.  S.  221. 

In  case  of  a  misjoinder,  a  plaintiff's  motive  in  joining  a  party 
as  defendant  can  be  questioned  only  when  by  legislative  act 
or  judicial  decision  it  is  the  settled  law  of  the  State  in  which 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     313 
215  U.  S.  Argm^^Q^  ^^^  Defendant  in  Error. 

the  action  is  brought  that  the  defendant,  alleged  to  be  joined 
as  a  sham  and  a  fraud,  is  not  liable;  and  no  such  question  can 
arise  where  the  law  of  the  State  by  judicial  decision  or  legis- 
lative act  fixes  the  liability  of  such  defendant.  Cases  swpraj 
and  Persm  v.  7.  C.  R.  R.  Co.,  118  Fed.  Rep.  342. 

The  action  for  death  is  regulated  by  the  Kentucky  consti- 
tution and  statute.  Const.  Ky.,  §  241;  Ky.  Stat.,  §  6.  And 
the  liability  of  a  railroad  corporation  that  leases  its  track  is 
regulated  by  the  Kentucky  constitution,  §  203,  which  forbids 
the  shifting  of  that  liability  from  the  lessor  to  the  lessee. 

Independent  of  the  constitutional  provision  the  corpora- 
tion owning  the  road  and  having,  received  a  charter  from  the 
State  is  under  certain  public  duties  that  even  a  duly  au- 
thorized lease  will  not  shift  or  change,  and  the  owner  cannot 
divest  itself  of  those  public  duties.  Brooker  v.  M,  &  B,  S.  R.  R. 
Co.,  119  Kentucky,  137;  McCabe  v.  M.  &  B.  S.  R.  R.  Co.,  112 
Kentucky,  861;  Svnce  v.  M.  &  B.  S.  R.  R.  Co.,  116  Kentucky, 
253;  He/ward  v.  M.  &  B.  S.  R.  R.  Co.,  70  S.  W.  Rep.  631; 
Davis  V.  C.  &  0.  Ry.  Co.,  75  S.  W.  Rep.  227;  dinger  v.  M.  & 
B.  S.  R.  R.  Co.,  109  S.  W.  Rep.  317. 

While  the  lessor  may  not  be  liable  to  the  servant  of  the 
lessee  for  an  injury  caused  by  the  negligent  act  or  omission 
of  the  lessee  as  to  some  duty  growing  out  of  the  mere  relation- 
ship of  master  and  servant,  the  lessor  is  liable  for  an  injury 
to  any  member  of  the  public,  including  the  servant  of  the 
lessee,  who  may  be  injured  by  a  negligent  act  or  omission 
as  to  a  public  duty,  such  as  a  failure  to  keep  its  roadbed  or 
track,  cattle  guards,  fences,  or  station  houses  in  a  reasonably 
safe  condition.  Siuice  v.  M.  A  B.  S.  Ry.  Co.,  116  Kentucky, 
253;  Nugent  v,  Boston  Railroad  Co.,  80  Maine,  62;  Curl  v. 
RaHroad,  28  Kansas,  622;  Arrowsmith  v.  Railroad,  57  Fed. 
Rep.  165;  Lee  v.  S.  P.  R.  R.  Co.,  116  California,  97. 

To  sue  all  three  of  the  defendants  for  damages  resulting 
from  the  negligent  acts  charged  in  the  petition  of  plaintiff, 
is  allowable  under  the  Kentucky  practice,  and  all  were  jointly 
bound  or  liable.    Pugh  v.  C.  &  0.  Ry.  Co.,  101  Kentucky, 


314  OCTOBER  TERM,  1909. 

Argument  for  Defendant  in  E2rror.  215  U.  S. 

77;  Rutherford  v.  /.  C.  R.  R.  Co,,  27  Ky.  L.  R.  397;  Jones  v. 
/.  C.  R.  R.  Co.,  26  Ky.  L.  R.  31;  /.  C.  R.  R.  Co.  v.  Coley,  28 
Ky.  L.  R.  336;  Cent.  Pass.  Ry.  Co.  v.  Kuhn,  86  Kentucky, 
578;  Hawkins  v.  Riley,  17  B.  Mon.  101;  C.  &  0.  R.  R.  Co.  v. 
Dixon,  179U.  S.  131. 

Under  the  authorities  supra,  the  construction  given  by 
the  Court  of  Appeals  of  Kentucky  to  §  1 19  of  the  Kentucky 
Civil  Code  is  conclusive;  and  no  act  of  the  legislature  or  au- 
thority for  the  lease  is  set  forth  in  the  petition  for  removal; 
and  that  being  true,  the  lease,  if  such  existed,  is  not  shown 
by  any  allegation  to  have  been  authorized  by  law  and  should, 
therefore,  be  treated  as  void.  Thomas  v.  West  Jersey  R.  R. 
Co.,  101  U.  S.  71;  Railroad  v.  Winans,  17  How.  30. 

Petition  to  remove  after  a  trial  on  the  merits  comes  too 
late.  A  peremptory  instruction  to  find  for  any  of  the  de- 
fendants was  "ruling  on  the  merits  and  not  a  ruling  on  the 
question  of  jurisdiction."  "The  right  to  remove  was  not 
contingent  on  the  aspect  the  case  may  have  assumed  on  the 
facts  developed  on  the  merits  of  the  issues  tried."  Whitcomb 
V.  Smithson,  175  U.  S.  635;  Kansas  City  Suburban  Belt  Ry, 
V.  Herman,  187  U.  S.  63. 

Therefore,  not  only  does  the  petition  of  the  plaintiff  allege 
facts  that  would  constitute  a  joint  cause  of  action  against  all 
of  the  defendants,  as  held  by  the  Court  of  Appeals  of  Ken- 
tucky, but  as  stated  by  the  opinion  of  that  court  in  this  case, 
"the  testimony  showed  without  much  contradiction"  the 
truth  of  plaintiff's  allegations  as  to  the  miserably  defective 
and  dangerous  condition  of  this  track  and  thus  absolutely 
fixed  the  liability  of  both  the  lessee  and  the  lessor  for  the 
death  of  the  plaintiff's  intestate  which  was  caused  thereby, — 
and  the  effort  to  avoid  this  conclusion  by  claiming  the  strik- 
ing of  the  stray  mule  by  the  engine  was  the  proximate  cause, 
only  makes  matters  worse  for  the  corporations,  because  their 
actionable  negligence  in  violating  §  1793,  Kentucky  statute, 
as  to  a  cattle  guard  at  that  place,  caused  the  collision  with 
the  mule. 


ILLINOIS  CENTRAL  R.  R.  CO.  v,  SHEEGOG.    315 

215  U.  S.  Opinion  of  the  Court. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  reverse  a  judgment  rendered  by 
the  Court  of  Appeals  of  Kentucky  in  favor  of  the  defendant 
in  error,  notwithstanding  a  petition  and  bond  for  removal  to 
the  Circuit  Court  of  the  United  States.  /.  C,  Ry.  Co,  v.  Shee- 
gog^s  Admr,,  126  Kentucky,  252. 

The  defendant  in  error  brought  this  action  for  causing  the 
death  of  his  intestate,  John  E.  Sheegog,  by  the  throwing  off 
the  track  of  a  railroad  train  upon  which  the  deceased  was  em- 
ployed as  an  engineer.  The  defendants  were  the  conductor 
of  the  train,  the  Illinois  Central  Railroad  Company,  which 
was  operating  the  railroad  and  owned  the  train,  and  the  Chi- 
cago, St.  Louis  and  New  Orleans  Railroad  Company,  which 
owned  the  road  and  tracks  where  the  accident  happened,  but 
which  had  let  the  same  to  the  first-mentioned  road.  It  was 
alleged  that  through  the  negligence  of  both  companies  the 
roadbed,  track,  etc.,  were  in  an  improper  condition;  that 
through  the  negligence  of  the  Illinois  Central  the  engine  and 
cars  were  in  an  improper  condition;  and  that  the  death  was 
due  to  these  causes  acting  jointly,  the  negligence  of  the  Illinois 
Central  in  permitting  its  engine,  cars  and  road  to  be  operated 
while  in  such  condition,  and  the  negligence  of  the  conductor 
in  ordering  and  directing  the  management  of  the  train. 

In  due  season  the  Illinois  Central  Railroad  Company,  being 
an  Illinois  corporation,  filed  its  petition  to  remove.  The  diffi- 
culty in  its  way  was  that  the  other  two  defendants  were  cit- 
!  izens  and  residents  of  Kentucky,  to  which  State  the  plaintiff 

also  belonged.  To  meet  this  the  petition  alleged  that  the 
plaintiff  had  joined  these  parties  as  defendants  solely  for  the 
i  purpose  of  preventing  the  removal.    It  admitted  the  lease  and 

averred  that  the  Illinois  Central  Company  operated  the  road 
exclusively  and  alone  employed  the  deceased.  It  went  on  to 
allege  that  the  charge  of  joint  negligence  against  the  lessor 
and  lessee  in  causing  the  wreck  as  stated  was  made  only  for 
the  above  purpose  and  was  fraudulent  and  knowingly  false. 


316  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

The  question  is  whether  these  allegations  were  sufficient  to 
entitle  the  petitioner  to  have  its  suit  tried  in  the  Federal 
court.  It  may  be  mentioned  here  that  the  jury  found  for  the 
other  two  defendants  and  against  the  Illinois  Central  Railroad 
Company,  but  that  fact  has  no  bearing  upon  the  case.  Whit- 
comb  V.  Smiihson,  175  U.  S.  635,  637. 

Of  course,  if  it  appears  that  the  joinder  was  fraudulent  as 
alleged,  it  will  not  be  allowed  to  prevent  the  removal.  Wecker 
V.  National  Enameling  &  Stamping  Co.,  204  U.  S.  176.  And 
further,  there  is  no  doubt  that  the  allegations  of  fact,  so  far 
as  material,  in  a  petition  to  remove,  if  controverted,  must  be 
tried  in  the  court  of  the  United  States,  and  therefore  must  be 
taken  to  be  true  when  they  fall  to  be  considered  in  the  state 
courts.  Crehore  v.  Ohio  &  Mississippi  Ry,  Co.,  131  U.  S.  240, 
244.  Chesapeake  &  Ohio  Ry.  Co.  v.  McCabe,  213  U.  S.  207. 
On  the  other  hand,  the  mere  epithet  fraudulent  in  a  petition 
does  not  end  the  matter.  In  the  case  of  a  tort  which  gives  rise 
to  a  joint  and  several  liability  the  plaintiff  has  an  absolute 
right  to  elect,  and  to  sue  the  tort-feasors  jointly  if  he  sees  fit, 
no  matter  what  his  motive,  and  therefore  an  allegation  that 
the  joinder  of  one  of  the  defendants  was  fraudulent,  without 
other  ground  for  the  charge  than  that  its  only  purpose  was 
to  prevent  removal,  would  be  bad  on  its  face.  Alabama 
Great  Southern  Ry.  Co.  v.  Thompson,  200  U.  S.  206.  CincinnaH, 
New  Orleans  &  Texas  Pacific  Ry,  Co,  v.  Bohon,  200  U.  S.  221. 
If  the  legal  effect  of  the  declaration  in  this  case  is  that  the 
Illinois  Central  Railroad  Company  was  guilty  of  certain  acts 
and  omissions  by  reason  of  which  a  joint  liability  was  imposed 
upon  it  and  its  lessor,  the  joinder  could  not  be  fraudulent  in  a 
legal  sense  on  any  ground  except  that  the  charge  against  the 
alleged  immediate  wrongdoer,  the  Illinois  Central  Railroad 
itself,  was  fraudulent  and  false. 

We  assume,  for  the  purposes  of  what  we  have  to  say,  that 
the  allegations  concerning  the  lessor  state  merely  a  conclu- 
sion of  law  from  the  acts  and  omissions  charged  against  its 
lessee.    Or,  if  they  be  taken  to  be  allegations  of  fact,  we  as- 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     317 
215  U.  S.  Opinion  of  the  Court. 

sume,  again  merely  for  the  purposes  of  decision,  that  they  are 
effectively  traversed  by  the  petition  to  remove.  The  Ken- 
tucky Court  of  Appeals  appears  to  us  to  have  discussed  the 
case  on  this  footing.  Whether  it  did  or  not,  the  question 
whether  a  joint  liability  of  lessor  and  lessee  would  arise  from 
the  acts  and  omissions  of  the  Illinois  Central  Railroad  Com- 
pany alone  was  a  question  of  Kentucky  law  for  it  to  decide, 
and  it  appears  to  us  to  have  decided  it. 

We  should  observe  in  the  first  place  that  the  cause  of  ac- 
tion alleged  is  not  helped  but  rather  hindered  by  the  allega- 
tion that  the  deceased  was  an  employ^  of  the  Illinois  Central 
Road.  The  case  did  not  stand  on  the  breach  of  any  duty 
owed  peculiarly  to  employes,  and  on  the  other  hand  was  en- 
cumbered with  the  fact  that  a  part  of  the  negUgence  charged 
was  that  of  a  fellow-servant.  The  plaintiff  recovered  for  a 
breach  of  a  duty  to  the  public  which  at  best  was  not  released 
or  limited  by  his  intestate's  having  been  in  the  company's 
service.  Now  whether  we  agree  with  it  or  not  the  doctrine 
is  familiar  that  in  the  absence  of  statute  a  railroad  company 
cannot  get  rid  of  the  liabilities  attached  to  the  exercise  of  its 
franchise,  by  making  a  lease.  Whatever  may  be  the  law  as 
to  purely  contract  relations,  to  some  extent  at  least  the  du- 
ties of  the  lessor  to  the  public,  including  that  part  of  the  pub- 
he  that  travels  on  the  railroad,  are  held  to  remain  unchanged. 
In  this  case  the  Court  of  Appeals,  after  noting  that  it  does 
not  appear  that  the  lessor  was  reUeved  by  statute,  quotes  an 
earlier  Kentucky  decision  which  seemingly  adopted  the  fol- 
lowing language  of  a  commentator:  "If  it  be  true,  as  the  de- 
cisions with  substantial  unanimity  admit,  that  a  lessor  railway 
remains  liable  for  the  discharge  of  its  duties  to  the  public 
unless  expressly  exempted  therefrom  by  statute,  it  seems 
difficult  to  conceive  its  absence  of  liability  in  any  event,  ex- 
cept perhaps  when  the  plaintiff  is  suing  upon  an  express  con- 
tract made  with  him  by  the  lessee  corporation."  McCabe  v. 
MaysvUle  &  Big  Sandy  R.  R.  Co.,  112  Kentucky,  861,  875. 

The  court,  however,  then  goes  on  to  refer  \o  a  distinction 


318  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

taken  in  a  later  Kentucky  case  between  torts  arising  from 
negligent  operation  and  those  resulting  from  the  omission  of 
such  duties  as  the  proper  construction  and  maintenance  of 
the  road,  Svnce  v.  Maysville  &  Big  Sandy  Ry.  Co.,  116  Ken- 
tucky, 253,  and  quotes,  with  seeming  approval,  decisions  in 
other  States  limiting  the  liability  of  the  lessor  to  the  latter 
class.  But  it  then  proceeds  to  show  that  the  recovery  in  this 
case  is  upon  a  breach  of  a  duty  to  the  public,  and  that  accord- 
ing to  the  declaration  and  the  verdict  the  injury  was  due, 
in  part,  at  least,  to  the  defective  condition  of  the  road.  It 
ends  by  saying  (p.  278):  "The  appellee  not  only  had  reason- 
able grounds  to  believe  that  the  resident  corporation  was  re- 
sponsible to  him,  but  he  had  actual  grounds  to  believe  it." 
We  understand  the  words  'actual  grounds'  to  mean  that 
the  belief  was  correct  on  the  allegations  and  findings  accord- 
ing to  Kentucky  law.  So  that,  whatever  may  be  the  precise 
line  drawn  by  that  court  hereafter,  it  stands  decided  that  in 
Kentucky  the  facts  alleged  and  proved  against  the  Illinois 
Central  Railroad  in  this  case  made  its  lessor  jointly  liable  as 
matter  of  law.    This  decision  we  are  bound  to  respect. 

It  follows,  if  our  interpretation  of  the  decision  is  correct, 
that  no  allegations  were  necessary  concerning  the  Chicago, 
St.  Louis  and  New  Orleans  Railroad  Company,  except  that 
it  owned  and  had  let  the  road  to  its  co-defendant.  The  joint 
liability  arising  from  the  fault  of  the  Illinois  Central  Road 
gave  the  plaintiff  an  absolute  option  to  sue  both  if  he  pre- 
ferred, and  no  motive  could  make  his  choice  a  fraud.  The 
only  way  in  which  fraud  could  be  made  out  would  be  by 
establishing  that  the  allegation  of  a  cause  of  action  against 
the  nUnois  Central  Railroad  was  fraudulent,  or  at  least  any 
part  of  it  for  which  its  lessor  possibly  could  be  held.  But  it 
seems  to  us  that  to  allow  that  to  be  done  on  such  a  petition 
as  is  before  us  would  be  going  too  far  in  an  effort  to  counter- 
act evasions  of  Federal  jurisdiction.  We  have  assumed,  for 
purposes  of  decision,  that  the  railroad  held  on  what  may  be 
called  a  secondary  ground  is  to  be  charged,  if  at  all,  only  as 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     319 
215  U.  S.  Day  and  Harlan,  J  J.,  dissenting. 

a  consequence  of  the  liability  of  its  lessee.  But  when  we  come 
to  the  principal  and  necessary  defendant,  a  man  is  not  to  be 
prevented  from  trying  his  case  before  that  tribunal  that  has 
sole  jurisdiction  if  his  declaration  is  true  by  a  mere  allegation 
that  it  is  fraudulent  and  false.  The  jury  alone  can  determine 
that  issue  unless  something  more  appears  than  a  naked  de- 
nial. Louisville  &  NashviUe  R.  R,  Co.  v.  Wangelin,  132  U.  S. 
599, 603.  Chesapeake  &  Ohio  Ry,  Co,  v.  Dixm,  179  U.  S.  131, 
138.  However,  the  petition  for  removal  hardly  raises  this 
point.  For  it  directs  itself  wholly  against  the  allegations 
of  joint  negligence,  and  does  not  attempt  to  anticipate  the 
trial  on  the  merits  so  far  as  the  conduct  of  the  Illinois  Central 
is  concerned. 

Judgment  affirmed. 

Mr.  Justice  Day,  with  whom  concurred  Mr.  Justice 
Harlan,  dissenting. 

In  my  view  this  decision  departs  from  rulings  recently 
made,  and  tends  to  disturb  settled  principles  essential  to  the 
maintenance  of  jurisdiction  in  the  Federal  courts.  In  order 
to  apply  my  views  I  will  briefly  restate  the  facts  of  the  case. 

Sheegog's  administrator  brought  an  action  in  the  state 
court  of  Kentucky  against  the  Illinois  Central  Railroad  Com- 
pany, a  corporation  of  the  State  of  Illinois,  the  Chicago,  St. 
Louis  and  New  Orleans  Railroad  Company,  a  corporation  of 
the  State  of  Kentucky,  and  F.  J.  Durbin,  a  citizen  of  Ken- 
tucky. The  Illinois  Central  Railroad  Company  was  the  lessee 
of  the  Chicago,  St.  Louis  and  New  Orleans  Railroad  Company, 
and  F.  J.  Durbin  was  alleged  to  be  a  conductor  in  the  employ 
of  the  lessee  road  and  in  charge  of  the  train,  in  the  operation 
of  which,  as  engineer,  plaintiff's  intestate  was  killed.  The 
charge  of  the  complaint  was  that  at  the  time  of  injury  the 
defendant,  the  Chicago,  St.  Louis  and  New  Orleans  Railroad 
Company,  was  the  owner  of  the  roadbed,  right  of  way,  etc., 
and  the  Illinois  Central  Railroad  Company  was  the  lessee  of 


320  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ.,  diasentizig.  215  U.  S. 

the  railroad  property,  and  the  owners  of  the  cars,  engines, 
trains  and  appliances,  in  the  operation  of  which  the  intestate 
was  killed;  that  the  defendant  Durbin  was  the  conductor  in 
the  employ  of  the  Illinois  Central  Railroad  Company,  operat- 
ing the  train  at  the  time  of  the  injury.  The  negligence  charged 
against  the  defendant  railroad  companies  was  that  the  road- 
bed, rails,  track,  cattle  guards,  ties,  fences  and  right  of  way 
of  the  railroad  was  allowed  to  be,  and  for  a  long  tinie  had 
been,  in  a  weak,  rotten,  ruinous  and  defective  condition ;  and, 
in  addition  thereto,  as  to  the  Illinois  Central  Railroad  Com- 
pany, its  cars  and  engines  were  knowingly  allowed  to  be  and 
remain  in  an  improper,  defective  and  dangerous  condition, 
and  were  improperly  constructed,  whereby  the  injury  was 
caused,  and  that  the  defendant  Durbin  was  guilty  of  negli- 
gence in  running,  ordering  and  directing  the  train,  and  con- 
tributed to  the  injury  thereby.  And  as  a  conclusion  the  plain- 
tiff charged  the  negligence  of  the  railroad  companies,  as  above 
described,  in  the  maintenance  of  the  track,  roadbed,  cattle 
guards,  etc.,  together  with  the  negligence  of  the  Illinois  Cen- 
tral Railroad  Company  in  directing  and  permitting  its  cars, 
engines  and  road  to  be  operated  while  in  a  dangerous  and 
defective  condition,  and  the  negligence  of  the  conductor  in 
directing  the  running  and  management  of  the  train,  "all  to- 
gether jointly  caused  said  wreck,  and  killed  the  plaintifif's 
intestate." 

Within  the  time  allowed  by  law  the  Illinois  Central  Rail- 
road Company,  the  present  plaintiff  in  error,  appeared  and 
filed  its  petition  for  removal  to  the  Federal  court.  As  the 
suflBciency  of  this  petition  to  make  a  cause  for  removal  is  the 
ultimate  question  in  the  case  it  is  necessary  to  set  out  its 
allegations  somewhat  in  detail: 

"  Your  petitioner  says  that  plaintiff's  decedent  at  the  time 
he  received  the  fatal  injury  complained  of  was  an  employ^ 
of  your  petitioner,  and  not  an  employ^  of  either  of  your  peti- 
tioner's co-defendants,  and  was  not  and  never  had  been  an 
employ^  or  in  the  employ  of  said  lessor,  or  said  F.  J.  Durbin, 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     321 
215  U.  S.  Day  and  Harlan,  JJ.,  dissenting. 

and  that  all  the  said  facts  were  well  known  to  plaintiff  when 
this  action  was  brought.  Your  petitioner  says  that  to  avoid 
such  removal  to  the  Federal  court  of  this  action  plaintiff 
joined  your  petitioner's  co-defendants,  one  a  Kentucky  cor- 
poration and  the  other  a  citizen  of  Kentucky,  and  falsely  and 
fraudulently  alleged  in  its  petition  that  the  train  on  which 
decedent  was  engaged  was,  through  joint  and  gross  negligence 
and  carelessness  of  all  the  defendants,  derailed,  and  said 
decedent  instantly  killed,  and  falsely  and  fraudulently  alleged 
that  by  the  negligence  of  both  defendants'  roadbed,  rails, 
track,  cattle  guards,  fences  and  right-of-way  of  the  said  rail- 
road was  allowed  to  be,  and  for  a  long  time  had  been,  in  a 
weak,  rotten,  ruinous,  defective  and  improper  condition,  and 
by  the  negligence  of  your  petitioner  its  engine  and- cars  were 
knowingly  allowed  to  remain  in  an  improper  and  defective 
and  dangerous  condition,  and  said  engine  and  cars  to  be  so 
constructed  as  to  be  in  a  dangerous  condition,  and  that  this 
improper  and  dangerous  condition  of  the  road  premises  and 
cars  of  the  defendants  was  known  to  the  defendants,  and 
that  at  the  time  of  the  wreck  and  accident  the  same  were  be- 
ing operated  in  a  careless  manner  by  all  the  defendants,  and 
the  defendant  Durbin,  by  his  negligence  in  running,  ordering 
and  directing  said  train  contributed  to  cause  said  accident, 
and  that  the  negligence  of  the  defendant  in  its  maintenance 
of  its  track,  roadbed,  engine,  cattle  guards,  rails,  ties,  fences, 
etc.,  as  set  out  above,  together  with  the  negligence  of  your 
petitioner  in  directing  and  permitting  its  engine  cars  and 
roadbed  to  be  operated  while  in  a  defective  and  dangerous 
condition,  and  the  negligence  of  said  Durbin  in  ordering  and 
directing  the  running  and  management  of  said  train,  and  in 
failing  to  give  proper  directions,  altogether  caused  said  wreck, 
and  killed  said  dcJcedent,  when  the  plaintiff  well  knew  that 
such  allegations  were  untrue,  and  plaintiff  did  not  expect  to 
establish  said  allegations,  and  did  not  make  them  for  the  pur- 
pose of  proving  them  at  the  trial,  or  of  substantiating  his 
cause  of  action  therewith,  but  made  them  solely  for  the  pur- 
VOL.  ccxv — 21 


322  OCTOBER  TERM,  1909. 

Day  and  Harlan,  J  J.,  dissenting.  215  U.  8. 

pose  of  attempting  to  set  up  a  joint  cause  of  action  against  the 
three  defendants  in  order  to  make  a  case  which  would  not  be 
removable  to  the  Federal  court." 

The  state  court  overruled  this  motion  to  remove,  and  its 
action  was  affirmed  by  the  Court  of  Appeals  of  Kentucky. 
/.  C.  Ry.  Co.  V.  Sheegog's  Admr,,  126  Kentucky,  252. 

In  the  court  below  a  peremptory  instruction  was  given 
the  jury  to  find  in  favor  of  the  Kentucky  corporation  and 
the  individual  defendant.  Notwithstanding  this  fact  the 
Court  of  Appeals  of  Kentucky  applied  a  rule  which  it  had  laid 
down  in  former  decisions,  and  held  that  the  facts  developed 
on  the  trial  had  shown  that  the  administrator  had  reasonable 
grounds  to  join  the  local  defendants,  and  was  therefore  justi- 
fied in  overruling  the  motion  to  remove.  In  other  words, 
while  the  opinion  seems  to  recognize  that  if  the  allegations 
of  the  petition  for  removal  were  true  a  fraudulent  joinder  was 
shown,  nev(»rtheless  the  proof  upon  the  merits  showed  that 
the  joinder  was  proper. 

The  ground  upon  which  the  Kentucky  Court  of  Appeals 
held  the  Kentucky  railroad  jointly  liable  with  the  Illinois 
Central  for  the  injuries  sustained  is  not  very  clear,  in  view  of 
the  fact  that  the  opinion  in  some  parts  of  it  seems  to  make 
the  liability  depend  upon  the  failure  to  construct  a  proper 
road  and  in  other  parts  seems  to  rest  the  responsibility  upon 
the  continuing  duty  of  the  lessor  railroad  company  to  furnish 
and  maintain  a  safe  roadbed  in  order  to  discharge  the  duties 
which  it  had  undertaken  by  accepting  the  franchise  which  the 
State  had  conferred  upon  it.  In  the  case  to  which  the  court 
makes  reference,  Nugent  v.  Boston,  C.  &  M,  R.  Co,,  80  Maine, 
62,  where  a  brakeman  was  injured  by  reason  of  the  negligent 
construction  of  an  awning  of  a  station  house  of  the  defendant 
company,  near  the  track,  the  liability  of  the  lessor  company 
was  rested  both  upon  the  ground  of  the  continuing  duty  to 
the  public  and  because  of  the  application  of  the  principle 
which  makes  a  lessor  liable  for  a  defective  construction  of  the 
subject-matter  of  the  lease.     In  either  view  it  is  perfectly 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     323 

215  U.  S.  Day  and  Harlan,  JJ.,  dissenting. 

apparent  that  the  liability  of  the  Illinois  Central  to  its  em- 
ployes, and  that  of  the  lessor  company  to  the  public,  rests 
upon  entirely  different  principles.  In  the  case  of  the  latter  the 
liability  is  because  of  the  duty  which,  it  is  held,  the  lessor  owes 
t.)  the  public;  and  in  the  former,  because  of  the  obligations  of 
the  employer  to  his  employ^  arising  from  the  relation  of  master 
and  servant.  In  this  connection  the  Court  of  Appeals  of  Ken- 
tucky, 126  Kentucky,  in  the  opinion  in  this  case,  said  (p.  275) : 

"In  all  cases  where  a  valid  lease  is  found  (or,  as  in  this 
discussion  where  it  is  assumed),  the  lessor  company  owes  no 
duty  whatsoever  as  an  employer  to  the  operatives  of  the 
lessee  company.  The  claim  of  relationship  of  employer 
and  employ^  under  such  circumstances  is  a  false  claim  and 
quantity.  It  does  not  exist.  The  responsibility  of  the  lessor 
company,  when  it  attaches,  does  not  spring  from  this  rela- 
tionship, but  arises  from  a  failure  of  the  lessor  company  to 
perform  its  duty  to  the  public,  of  which  public  the  employ^ 
of  the  operating  company  may  be  regarded  as  one.  Thus,  in 
those  cases  where  the  injury  has  resulted  to  an  employ^  of 
the  operating  company  by  reason  of  the  negligence  of  a  fellow 
servant,  or  of  want  of  care  of  the  lessee  company  in  manag- 
ing the  road,  or  in  negligence  in  furnishing  suitable  appliances, 
these  and  kindred  matters  being  entirely  and  exclusively 
within  the  control  of  the  lessee  company  for  injury  which  may 
result,  the  lessor  is  in  no  way  responsible.  But  where  injury 
has  resulted  to  an  employ^  of  the  operating  company  by 
reason  of  a  failure  of  the  lessor  to  perform  its  public  duty,  as 
in  the  failure  to  construct  a  safe  road,  as  is  here  charged,  the 
injured  employ^  may  sue  the  lessor  company,  as  one  of  the 
public,  for  its  failure  to  perform  that  duty,  and  not  because, 
between  himself  and  the  lessor  company,  the  relation  of  em- 
ploy6  and  employer,  or  any  relation  of  contractual  privity, 
exists." 

After  citing  the  case  from  80  Maine,  supra,  the  court  adds 
(p.  277): 

"This  case  is  very  similar  to  the  one  at  bar,  in  which  it  was 


324  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ.,  dissenting.  215  U.  S. 

alleged  and  proved  that  the  intestate's  death  was  the  proxi- 
mate result  of  the  failure  of  the  lessor  to  perform  its  public 
duty  in  its  failure  to  construct  a  safe  roadbed." 

It  is  apparent  that  the  liability  of  the  two  railroad  com- 
panies, although  both  might  be  liable  for  a  defective  roadbed, 
track,  etc.,  sprang  from  a  different  relation,  and  was  con- 
trolled by  different  principles.  The  liability  to  the  plaintiff's 
intestate,  of  the  Kentucky  corporation,  was  to  him  as  one  of 
the  public,  that  of  the  Illinois  corporation  arose  from  the  rela- 
tion of  master  and  servant,  and  the  duties  thereby  imposed 
upon  the  employer. 

But  let  it  be  conceded  that  a  proper  construction  of  the 
opinion  of  the  Kentucky  Court  of  Appeals  holds  both  the 
railroad  companies,  although  upon  different  relations  to  the 
plaintiff's  intestate,  liable  for  a  defective  roadbed,  it  is  none 
the  less  true  that  the  Illinois  Central  Railroad  Company  had 
a  right  of  removal  to  the  Federal  jurisdiction,  in  which  to 
test  its  liability,  unless  it  was  properly  joined  with  the  other 
defendants  in.  an  action  brought  in  good  faith  in  the  state 
court. 

It  is  the  result  of  the  decisions  of  this  court,  as  I  under- 
stand them,  that  if  the  facts  which  asserted  a  joint  liability 
with  the  local  defendant  are  shown  by  proper  petition  for 
removal,  and  proof  if  necessary,  to  have  been  made  for  the 
purpose  of  defeating  the  jurisdiction  of  the  Federal  court, 
the  right  of  removal  still  exists  in  favor  of  the  non-resident 
company.  This  court  has  had  occasion  to  consider  this  sub- 
ject in  a  number  of  recent  cases.  Before  taking  them  up  we 
may  state  certain  principles  applicable  to  the  law  of  removals 
under  the  removal  act  which  are  so  well  settled  as  scarcely 
to  need  the  citation  of  authorities. 

When  the  petition  for  removal  is  filed  in  the  state  court, 
accompanied  by  the  proper  bond,  a  question  of  law  as  to  the 
sufficiency  of  the  petition  for  removal  only  is  presented  to 
that  court.  Steamship  Co.  v.  Tugman^  106  U.  S.  118;  Stone 
V.  Sauih  Carolina,  117  V.  S.  430;  Carson  v.  HyaJtt,  118  U.  S. 


ILLINOIS  CENTRAL  R.  R.  CO.  v,  SHEEGOG.     325 
215  U.  S.  Day  and  Hablan,  JJ.,  dissenting. 

279;  Burlington^  Cedar  Rapids  &  Northern  R.  R.  Co,  v.  Dunn, 
122  U.  S.  513;  Crehore  v.  Ohio  &  Mississippi  Ry.  Co.,  131  U.  S. 
240;  Traction  Company  v.  Mining  Co,,  196  U.  S.  239. 

It  is  equally  well  settled,  and  is  a  result  of  the  principle 
just  stated,  that  where  the  right  of  removal  arises  because  of 
certain  facts  averred  in  the  petition,  that  issue  cannot  be 
tried  in  the  state  court,  but  must  be  heard  in  the  Federal 
court,  which  alone  has  jurisdiction  to  determine  such  issues 
of  fact.  Carson  v.  Dunham,  121  U.  S.  421;  Burlington,  Cedar 
Rapids  &  Northern  R,  R.  Co.  v.  Dunn,  122  U.  S.  513;  Crehore 
V.  Ohio  &  Miss.  Ry.  Co.,  131  U.  S.  240;  Kansas  City  Railroad 
V.  Daughiry,  138  U.  S.  298;  Traction  Company  v.  Mining  Co., 
196  U.  S.  239. 

In  recent  cases  in  this  court  the  former  adjudications  have 
been  reviewed  and  followed,  and  it  has  been  held  that  for  the 
purposes  of  removal  the  cause  of  action  must  be  regarded  as 
joint  or  several,  accordingly  as  the  plaintifif  has  averred  the 
same  to  be  in  his  complaint,  in  the  absence  of  inferences  aris- 
ing from  the  pleading  or  shown  extrinsically  upon  a  petition 
for  removal,  which  warrant  the  conclusion  that  a  fraudulent 
joinder  has  been  made  for  the  purpose  of  avoiding  the  jims- 
diction  of  the  Federal  court.  Chesapeake  &  Ohio  Ry.  Co,  v. 
Dixon,  179  U.  S.  131;  Alabama  Great  Southern  Ry.  Co.  v. 
Thompson,  200  U.  S.  206;  Cincinnati,  New  Orleans  &  Texas 
Pacific  Ry.  Co.  v.  Bohon,  200  U.  S.  221.  In  the  Alabama 
Great  Southern  Ry.  Case,  200  U.  S.  206,  certain  employes, 
citizens  of  Tennessee,  had  been  joined  with  the  Alabama  and 
Great  Southern  Railroad  Company  in  an  action  for  negligence, 
and  the  question  of  the  right  to  join  them  was  certified  to 
this  court,  and  it  was  held,  after  reviewing  the  former  cases, 
that,  in  the  absence  of  fraudulent  joinder,  the  cause  of  action 
might  be  regarded  for  the  purposes  of  removal  to  be  that 
which  the  plaintifif  had  averred  it  to  be. 

In  the  Bohon  Case,  200  U.  S.  221,  considered  with  the  Ala- 
hama  Great  Southern  case,  supra,  the  action  was  brought 
against  the  railroad  company  and  one  Milligan,  an  engineer 


326  OCTOBER  TERM,  1909. 

Day  and  Hablan,  JJ.,  dissenting.  215  U.  S. 

in  charge  of  an  engine,  the  negUgent  operation  of  which,  it 
was  alleged,  resulted  in  the  death  of  the  plaintiff's  intestate. 
It  appeared  that  the  joinder  was  permitted  by  the  laws  of 
Kentucky,  and  it  was  held  in  this  court  that,  in  the  absence 
of  a  showing  of  fraudulent  joinder,  the  case  was  not  a  remov- 
able one.  An  examination  of  the  petition  for  removal  in  that 
case  shows  that  while  there  were  allegations  that  the  joinder 
was  fraudulent,  that  conclusion  was  averred  to  arise  because 
there  was  no  joint  liability  of  the  railroad  company  and  the 
employ 4;  that  he  was  joined  because  he  was  a  resident  of  Ken- 
tucky for  the  purpose  of  preventing  removal.  But  there  is 
no  averment  in  the  petition  for  removal  in  the  Bohon  case  as 
there  is  in  this  case — that  the  allegations  of  fact  upon  which 
the  complaint  was  based  were  untrue,  made  without  any 
expectation  of  proving  them,  and  for  the  purpose  of  defeat- 
ing a  removal  to  the  Federal  court.  In  concluding  the  dis- 
cussion in  the  opinion  in  the  Bohon  case  it  was  said  (p.  226) : 

"A  State  has  an  unquestionable  right  by  its  constitution 
and  laws  to  regulate  actions  for  negligence,  and  where  it  has 
provided  that  the  plaintiff  in  such  cases  may  proceed  jointly 
and  severally  against  those  liable  for  the  injury,  and  the  plain- 
tiff in  due  course  of  law  and  in  good  faith  has  filed  a  petition 
electing  to  sue  for  a  joint  recovery  given  by  the  laws  of  the 
State,  we  know  of  nothing  in  the  Federal  removal  statute 
which  will  convert  such  action  into  a  separable  controversy 
for  the  purpose  of  removal,  because  of  the  presence  of  a  non- 
resident defendant  therein  properly  joined  in  the  action  under 
the  constitution  and  laws  of  the  State  wherein  it  is  conduct- 
ing its  operations  and  is  duly  served  with  process." 

In  Wecker  v.  Enameling  &  Stamping  Company,  204  U.  S. 
176,  suit  was  brought  in  the  state  court  in  Missouri  by  Wecker 
against  the  Enameling  and  Stamping  Company,  Harry 
Schenck  and  George  Wettengel.  Wettengel  was  a  citizen  of 
the  State  of  Missouri,  the  enameling  company  was  a  foreign 
corporation.  The  complainant  charged  that  the  plaintiff 
was  employed  by  the  company  in  working  about  certain  pots 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.    327 
215  U.  S.  Day  and  Harlan,  JJ.,  dissenting. 

used  in  the  melting  of  grease  and  lubricant  matter,  which 
matter  was  delivered  to  the  plaintifif  in  barrels  of  great  weight, 
and  which  it  was  the  plaintiff's  duty  to  hoist  to  the  top  of 
the  furnace  and  into  the  pots  for  melting.  The  negligence 
charged  against  the  corporation  consisted  in  allowing  the  pots 
to  remain  open  and  exposed  while  filled  with  hot  and  boiling 
lubricants,  without  covering,  railing  or  device  or  means  of 
any  character  to  protect  the  plaintifif  from  slipping  or  falling 
therein,  and  negligently  failing  to  provide  safe  and  sufficient 
hoisting  apparatus  for  the  use  of  the  plaintifif  in  his  employ- 
ment, and  failing  to  instruct  him  in  his  duties,  whereby  and 
because  of  the  negligence  charged  the  plaintifif  lost  his  balance 
and  fell  into  one  of  the  unguarded  and  open  pots,  receiving 
thereby  great  and  painful  injuries.  Wettengel,  it  was  charged, 
was  employed  by  the  corporation,  and  charged  with  the 
superintendence  and  oversight  of  the  plaintifif  in  the  per- 
formance of  his  duties,  and  with  the  duty  of  superintending 
and  planning  the  construction  of  the  furnace,  and  providing 
for  the  pots  a  reasonably  safe  and  suitable  covering,  and  suf- 
ficiently safe  hoisting  apparatus,  and  with  the  duty  of  instruct- 
ing the  plaintifif  as  to  the  manner  of  performing  his  duties. 
The  complaint  charges  the  negligence  of  Wettengel  in  plan- 
ning and  directing  the  construction  of  the  furnace  structure 
and  in  providing  suitable  coverings  and  railings,  and  in  pro- 
viding and  placing  reasonably  safe  and  sufficient  hoisting  ap- 
paratus, and  in  giving  instructions  as  to  the  manner  of  per- 
forming the  plaintifif's  duties,  and  therefore  charges  that  the 
negligence  of  the  corporation  and  Wettengel,  jointly,  caused 
the  injury,  and  prayed  for  a  joint  judgment  against  them. 

In  its  petition  for  removal  the  non-resident  corporation 
charged  that  Wettengel  was  not,  at  the  time  of  the  accident 
and  prior  thereto,  charged  with  the  superintendence  and 
oversight  of  the  plaintifif,  or  with  the  duties  of  planning  or 
directing  the  construction  of  the  furnace,  or  providing  a 
reasonably  safe  and  suitable  furnace  and  pots  and  railings  or 
other  device  to  protect  the  plaintifif,  and  was  not  charged 


328  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ.,  dissenting.  215  U.  S. 

with  the  duty  of  placing  reasonably  safe  and  sufficient  hoist- 
ing apparatus,  nor  with  the  duty  of  instructing  the  plaintiff 
in  resj)ect  to  his  duties;  that  Schenck  was  a  non-resident  of 
Missouri,  and  that  Wettengel  had  been  improperly  and  fraud- 
ulently joined  as  a  defendant  for  the  purpose  of  fraudulently 
and  improperly  preventing,  or  attempting  to  prevent,  the  de- 
fendant from  removing  the  cause  to  the  United  States  Circuit 
C!ourt,  and  that  plaintiff  well  knew  at  the  beginning  of  the 
suit  that  Wettengel  was  not  charged  with  the  duties  afore- 
said, and  joined  him  as  a  defendant  to  prevent  the  removal 
of  the  case,  and  not  in  good  faith.  Defendant  offered  affi- 
davits tending  to  show  that  Wettengel  was  employed  in  the 
office  as  a  draftsman ;  that  he  had  nothing  to  do  with  the  se- 
lecting of  plans  or  approving  the  same;  that  he  had  no  au- 
thority to  superintend  the  work  or  to  give  instructions  to  any 
of  the  men  as  to  the  manner  in  which  they  should  perform  the 
work;  that  he  was  merely  a  subordinate  in  the  employ  of  the 
company,  whose  sole  duties  were  to  attend  to  the  mechanical 
work  of  drafting,  to  make  the  necessary  drawings  for  the  use 
of  the  mechanics,  and  he  had  nothing  to  do  with  the  provid- 
ing of  the  pots,  railings,  etc.,  or  the  hoisting  apparatus;  that 
his  position  was  merely  clerical,  and  confined  to  the  making 
of  drawings  to  enable  mechanics  to  construct  work  from 
plans  furnished  by  others  in  the  employ  of  the  defendant. 
Upon  these  affidavits  the  Circuit  Court  reached  the  conclu- 
sion that  the  attempt  to  join  Wettengel  was  not  made  in  good 
faith;  that  the  allegations  as  to  him  were  fraudulent  and 
fictitious,  for  the  purpose  of  preventing  a  removal  to  the 
Federal  court. 

This  court  dechned  to  consider  the  question  as  to  whether, 
as  a  matter  of  law,  the  cause  of  action  was  joint  or  several, 
or  whether,  upon  the  allegations  of  the  complaint,  Wettengel 
could  be  held  jointly  with  the  corporation,  (204  U.  S.  183), 
and  affirmed  the  judgment  of  the  court  below  upon  its  find- 
ings of  fact  upon  the  issue  of  fraudulent  joinder. 

This  case,  therefore,  held  the  doctrine  of  this  court  to  be 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SHEEGOG.     329 
215  U.  S.  Day  and  Harlan,  JJ.  dissenting. 

that  the  Circuit  Court  of  the  United  States  upon  a  proper 
j)etition  for  removal  may  examine  into  the  merits  sufficiently 
to  determine  whether  the  allegations,  by  reason  of  which  a 
non-resident  defendant  may  be  sued  in  a  state  court,  are 
fraudulently  and  fictitiously  made  for  the  purpose  of  prevent- 
ing removal.  It  is  true  that  where  one  has  a  cause  of  action 
of  which  both  state  and  Federal  courts  have  jurisdiction  his 
motive  in  bringing  the  action  in  the  one  jurisdiction  or  the 
other  is  inunaterial,  and  he  may  sue  in  the  state  court  because 
he  preferred  that  jurisdiction  to  a  Federal  court  to  which  he 
had  an  equal  right  to  go. 

But  this  case  presents  a  very  different  question.  The  in- 
quiry here  is  not  whether  a  cause  of  action  exists  which  may 
be  prosecuted  in  either  court,  but  whether  the  allegations  of 
the  complaint,  which  give  the  right  to  a  joint  action  in  the 
state  court,  are  falsely  and  fictitiously  made  without  the  in- 
tention of  proving  them,  and  with  the  sole  purpose  of  avoid- 
ing Federal  jurisdiction.  Since  its  decision  the  case  of  Wecker 
V.  The  Enameling  &  Stamping  Company  has  been  frequently 
cited  and  followed  in  the  Federal  courts.  McGuire  v.  Great 
Northern  Ry.  Co.,  153  Fed.  Rep.  434;  Donovan  v.  Wells,  Fargo 
&  Co.,  169  Fed.  Rep.  363;  Lockard  v.  St.  Louis  &  S.  F. 
R.  Co.,  167  Fed.  Rep.  675;  People's  U.  S.  Bank  v.  Goodwin, 
160  Fed.  Rep.  727;  McAlister  v.  Chesapeake  &  Ohio  Ry.  Co., 
157  Fed.  Rep.  740. 

Applying  these  principles  to  the  case  at  bar,  the  allega- 
tions of  the  complaint  filed  in  the  state  court  undertook  to 
make  a  cause  of  action  against  the  Illinois  Central  Company, 
the  non-resident  corporation,  upon  three  grounds:  First, 
because  it  was  jointly  liable  with  the  Chicago,  St.  Louis  and 
New  Orleans  Railroad  Company,  the  local  corporation,  for 
a  defective  roadbed;  second,  because  it  was  liable  for  the 
negligent  conduct  of  the  conductor,  Durbin,  in  running  its 
trains;  third,  because  it  was  liable  for  the  negligent  and  im- 
proper construction  of  its  locomotive  and  cars.  As  to  the 
third  ground  of  the  complaint,  the  defective  locomotive  and 


330  OCTOBER  TERM,  1909. 

Day  and  Harlan,  JJ,  dissenting.  215  U.  S. 

cars,  the  authorities  agree  that  there  is  no  responsibility  upon 
the  part  of  the  lessor  company.  The  policy  of  the  law  as 
ruled  by  the  Kentucky  Court  of  Appeals  made  the  lessor 
corporation  responsible  for  a  defective  roadbed,  it  was  not 
responsible  for  defective  appUances  supplied  by  the  lessee 
company  or  for  negligence  in  the  running  and  management 
of  the  road.  This  was  expressly  held  by  the  Kentucky  Court 
of  Appeals  in  Swice^s  Administratrix  v.  MaysviUe  &  Big 
Sandy  Ry.  Co,,  116  Kentucky,  253,  prior  to  its  decision  in  the 
case  at  bar.  Therefore,  as  to  this  ground  of  coixiplaint  there 
was  no  contributing  neglect  of  the  local  company  or  the  con- 
ductor, Durbin. 

If  the  allegations  which  gave  a  right  to  join  these  defend- 
ants were  false  and  fictitious,  such  joinder  should  not  be  al- 
lowed to  defeat  the  right  of  the  foreign  corporation  to  avail 
itself  of  the  Federal  jurisdiction.  As  we  had  occasion  to  say 
in  the  Wecker  case,  the  courts  of  the  United  States  should  not 
interfere  with  the  jurisdiction  of  the  state  courts  in  cases 
properly  within  the  same,  and  the  Federal  courts  should  be 
equally  vigilant  to  defeat  all  fraudulent  devices  or  attempts 
to  avoid  the  jurisdiction  of  the  Federal  courts.  If  the  alle- 
gations of  the  petition  for  removal  were  true  the  statements 
of  the  complaint  as  to  the  negligence  of  Durbin  and  the  local 
corporation  were  false  and  fraudulent,  and  made  without  the 
intention  of  proving  the  same,  and  for  the  purpose  of  pre- 
venting removal. 

The  sole  jurisdiction  to  inquire  into  the  truth  of  these  al- 
legations was  in  the  Federal  court,  and  while  it  would  require 
a  clear  and  strong  case  to  make  out  such  allegations  of  fraud- 
ulent joinder,  jurisdiction  to  make  just  such  an  inquiry  is 
vested  by  law,  under  the  removal  act,  in  the  Federal  courts. 
It  may  be  that  the  allegations  for  removal  might  have  been 
more  specific,  but  they  were  sufficient  to  enable  the  Federal 
court  to  enter  into  an  inquiry  as  to  the  fraudulent  character 
of  the  joinder  of  the  resident  defendants.  It  might  find, 
upon  investigation,  that  the  allegations  as  to  the  condition 


GRAVES  V.  ASHBURN.  331 

215  U.  S.  Syllabus. 

of  the  roadbed  and  the  negligence  of  the  conductor  were  so 
entirely  without  foundation  as  to  warrant  the  conclusion  that 
the  local  corporation  and  the  conductor  were  fraudulently 
joined  to  avoid  the  Federal  jurisdiction.  Indeed,  it  is  to  be 
noted  in  this  connection  that  at  the  close  of  the  evidence 
the  trial  court  directed  a  verdict  in  favor  of  the  local  corpora- 
tion and  the  conductor.  It  is  true  that  the  right  to  remove 
depends  upon  the  allegations  of  the  petition,  but  the  course 
of  the  case  in  the  state  court  is  an  illustration  of  the  possible 
result  of  an  investigation  of  the  truth  of  the  allegations  of 
the  petition  for  removal. 

I  therefore  reach  the  conclusion  that,  upon  the  face  of  the 
petition  for  removal,  there  were  allegations  which  ended  the 
jurisdiction  of  the  state  court,  and  a  sufficient  statement  of 
facts  to  enable  the  Federal  court  to  investigate  the  truthful- 
ness thereof  with  a  view  to  determine  whether  they  were  so 
false  and  fictitious  as  to  show  that  they  were  made  with  a 
view  to  prevent  the  removal  to  the  United  States  court. 

In  my  opinion  the  judgment  of  the  Court  of  Appeals  of 
Kentucky  should  be  reversed. 

Mr.  Justice  Harlan  concurs  in  this  dissent. 


••• 


GRAVES  V.  ASHBURN. 

CERTIORARI  TO  THE  CIRCUrT  COURT  OP  APPEALS  FOR  THE 

FIFTH  CIRCUIT. 

No.  51.    Argued  December  7,  1909.— Decided  December  20,  1909. 

Where  the  remedy  at  law  is  of  doubtful  adequacy  and  the  policy  of 
the  State  is  clearly  indicated  for  the  protection  of  an  important 
industry,  equity  may  interfere,  although  under  different  circum- 
stances an  injunction  might  be  denied;  and  so  held  as  to  an  injunc- 
tion against  cutting  or  boxing  timber  on  pine  lands  in  Georgia. 

Possession  of  imenclosed  woodland  in  natural  condition  is  a  fiction 


332  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

of  law  rather  than  a  possible  fact,  and  can  reasonably  be  assumed 
to  follow  the  title;  and,  in  this  case,  held  that  a  suit  in  equity  could 
be  maintained  to  remove  cloud  on  title  and  cancel  a  fraudulent 
deed  of  timber  lands  in  Georgia  notwithstanding  there  was  no 
allegation  of  possession. 

A  suit  in  equity  may  be  maintained  to  cancel  a  deed  improperly  given 
where  the  invalidity  does  not  appear  on  its  face,  and  under  which 
by  the  state  law,  as  in  Georgia,  possession  might  give  a  title. 

The  fact  that  the  defendant  has,  during  the  pendency  of  an  equity 
action  to  set  aside  a  deed,  continued  to  waste  the  property  does  not 
destroy  the  jurisdiction  of  the  court;  the  bill  may  be  retained  and 
damages  assessed. 

The  objection  of  multifariousness  is  one  of  inconvenience,  and,  after 
trial,  where  the  objection  was  not  sustained  by  the  lower  court 
and  defendants  did  not  stand  upon  their  demurrer  setting  it  up, 
it  will  not  prevail  in  this  court  in  a  case  where  the  bill  charged  -a 
conspiracy  between  several  trespassers  whose  trespasses  extended 
over  contiguous  lots  treated  as  one. 

The  facts  are  stated  in  the  opinion. 

Mr.  Marion  Ervrin,  with  whom  Mr.  William  J.  Wallace 
was  on  the  brief,  for  petitioners. 

Mr.  Alfred  R.  Kline  and  Mr.  Robert  L.  Shipp  for  respond- 
ents. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  brought  by  the  petitioners  against 
H.  T.  Crawford,  W.  W.  Ashbum,  now  represented  by  his 
executrix,  his  lessees,  and,  originally,  against  other  defend- 
ants who  have  been  disposed  of  and  are  not  before  us.  The 
petitioners  show  title  in  themselves,  derived  from  the  State, 
to  four  nearly  square  lots  of  land,  of  about  490  acres  each, 
contiguous  to  each  other  and  making  one  large  square  in  the 
Eighth  District  of  Colquitt  County,  Georgia.  The  right  hand 
upper  square  upon  the  map  is  numbered  353,  the  left  hand 
upper  square,  354,  the  left  hand  lower,  383,  and  the  right 
hand  lower,  384.    This  land  had  upon  it  pine  woods  valuable 


GRAVES  V,  ASHBURN.  333 

215  tJ.  S.  OpinioD  of  the  Court. 

for  timber  and  turpentine.  The  bill  alleges  that  the  peti- 
tioners being  residents  of  New  York  employed  a  firm  of 
lawyers  to  look  after  the  same ;  that  by  a  breach  of  trust  and 
without  title  or  authority  a  deed  was  made  on  behalf  of  the 
firm  purporting  to  convey  the  north  half  of  lot  353  to  the 
defendant  Ashbum;  that  he  had  notice  of  the  want  of  title, 
but  nevertheless  let  the  timber  privileges  to  another  de- 
fendant, and  that  the  latter  was  about  to  cut  the  timber  and 
had  already  boxed  the  trees  and  taken  turpentine  from  other 
portions  of  the  same  lot.  In  pursuance  of  the  same  general 
fraudulent  plan  another  voidable  or  void  conveyance  was 
made  to  Crawford  of  lot  383,  and  thereafter  Crawford  began 
to  box  the  trees  on  that  lot  and  to  carry  away  the  turpentine. 
Further  particulars  are  not  necessary  here.  The  bill  sought 
an  injunction  against  boxing  the  trees,  canying  away  tur- 
pentine, or  cutting  timber,  and  a  cancellation  of  the  fraudu- 
lent deeds. 

The  Circuit  Court  dismissed  the  bill  against  Crawford,  on 
the  ground  that  the  plaintiffs  had  a  complete  remedy  at  law, 
and  it  did  not  pass  on  the  title  to  lot  383  and  the  south  half 
of  353.  It  declared  the  plaintiffs'  title  to  lots  354,  384  and 
the  north  half  of  353,  and  granted  the  relief  prayed  in  respect 
of  them  against  Ashbum  and  others.  There  were  cross  ap- 
peals, and  the  Circuit  Court  of  Appeals  dismissed  the  bill, 
concurring  with  the  Circuit  Court  as  to  Crawford,  and  hold- 
ing, with  regard  to  Ashbum,  that  so  far  as  the  cloud  upon  the 
title  was  concemed  it  did  not  appear  sufficiently,  from  the 
biU,  that  the  plaintiffs  were  in  possession,  and  if  they  were, 
the  deed  to  Ashbum  did  not  constitute  a  cloud.  As  to  the 
cutting  of  trees,  it  was  held  that  the  remedy  at  law  was  com- 
plete. 

We  shall  deal  first  with  the  last  ground  of  decision,  which 
involves  a  difference  of  opinion  between  different  Circuit 
Courts  of  Appeals.  It  is  assumed,  as  was  found  by  the  Cir- 
cuit Court,  that  the  plaintiffs'  title  was  made  out  and  that 
the  defendant  is  or  may  be  responsible  for  the  wrong.    If  the 


334  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

defendant  is  responsible  we  are  of  opinion  that  an  injunction 
ought  to  issue.  The  industry  concerned  is  so  important  to 
the  State  of  Georgia  and  the  remedy  in  damages  is  of  such 
doubtful  adequacy  that  equity  properly  may  intervene,  al- 
though in  different  circumstances  an  injunction  against  cut- 
ting ordinary  timber  might  be  denied.  The  poUcy  of  the 
State  is  indicated  by  §  4927  of  the  Civil  Code,  1895,  continu- 
ing earlier  acts.  "  In  all  applications  ...  to  enjoin  the 
cutting  of  timber  or  boxing  or  otherwise  working  the  same 
for  turpentine  purposes,  it  shall  not  be  necessary  to  aver  or 
prove  insolvency,  or  that  the  damages  will  be  irreparable." 
Although  in  form  addressed  to  procedure  this  implies  a 
principle  grounded  upon  a  view  of  public  policy.  See  Camp 
V.  Dixon,  112  Georgia,  872.  Gray  Lumber  Co,  v.  Gaskirtj  122 
Georgia,  342.  The  same  result  has  been  reached  apart  from 
statute  by  the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit 
and  in  other  cases.  Peck  v.  Ayres  &  Lord  Tie  Co.,  116  Fed. 
Rep.  273.  United  States  v.  Guglard,  79  Fed.  Rep.  21.  King  v. 
Stvart,  84  Fed.  Rep.  546.  Whatever  the  ultimate  disposition 
of  the  case  a  final  decree  should  not  be  entered  until  the  evi- 
dence has  been  considered  in  the  light  of  the  rule  that  we  lay 
down.  We  leave  the  further  consideration  to  the  court  below. 
As  the  case  is  before  us,  it  is  proper  to  add  that  we  perceive 
no  sufficient  reason  in  the  grounds  stated  for  den3dng  a  can- 
cellation of  the  deed  to  Ashbum.  The  first  of  these  grounds 
is  that  the  plaintiffs  do  not  allege  that  they  are  in  possession 
of  the  land  concerned.  We  infer  that  the  premises,  or  the 
greater  part  of  them,  are  woodland,  not  enclosed  by  fences, 
but  in  their  original  natural  condition.  If  so,  then  possession 
is  a  fiction  of  law  rather  than  a  possible  fact,  and  it  would 
be  reasonable  to  assume  that  possession  remains  with  the 
title.  Green  v.  Liter,  8  Cranch,  229.  Georgia  Code,  §  3878. 
We  may  say  more  broadly,  and  without  qualifying  Lawson 
V.  United  States  Mining  Co,,  207  U.  S.  1,  9,  that  in  view  of 
the  statute,  the  relief,  in  case  of  such  lands,  should  not  be 
made  to  depend  upon  shadowy  distinctions,  according  to  the 


GRAVES  V.  ASHBURN.  335 

215  U.  S.  Opinion  of  the  Court. 

greater  or  less  extent  of  the  trespasses  committed.  See  HoU 
land  V.  Challen,  110  U.  S.  15.  Simmons  Creek  Coal  Co,  v. 
Doran,  142  U.  S.  417,  449.  It  has  been  inthnated  by  the 
Georgia  court  that  rehef  would  be  granted,  irrespective  of 
possession.  Pierce  v.  Middle  Georgia  Land  &  Lumber  Co,, 
131  Georgia,  99.  Griffin  v.  Sketoe,  30  Georgia,  300.  See  also 
Sharon  v.  Tvcker,  144  U.  S.  533,  536,  543.  The  other  ground 
mentioned  is  that  if  Ashburn  should  sue,  his  deed  would  not 
enable  him  to  recover.  But  in  any  case  proper  for  relief  the 
deed  does  not  convey  a  good  title.  It  is  enough  that  the 
invalidity  does  not  appear  upon  its  face,  but  rests  partly  on 
matter  in  pais,  and  that  possession  under  it  for  seven  years 
might  give  a  title  by  the  Georgia  Code,  §  3589,  embodying 
earlier  statutes. 

The  fact  that  Crawford  during  the  pendency  of  the  suit 
had  cut  the  trees  on  a  portion  of  the  land  did  not  destroy  the 
jurisdiction  of  the  court.  If  that  or  the  other  grounds  that 
we  have  mentioned  were  the  reasons  for  dismissing  the  bill 
as  to  him,  it  should  be  retained  and  damages  assessed.  Milk- 
man V.  Ordway,  106  Massachusetts,  232,  253.  If  dififerent 
facts  from  those  that  we  have  discussed  were  found  to  exist 
it  does  not  appear. 

It  is  urged  that  the  bill  is  multifarious.  But  it  charges  a 
conspiracy  between  the  several  trespassers,  and  trespasses 
extending  over  the  greater  part  of  the  four  contiguous  lots 
treated  as  one.  The  objection  of  multifariousness  is  an 
objection  of  inconvenience.  The  defendants  did  not  stand 
upon  their  demurrers  setting  it  up.  There  has  been  a  trial 
after  long  delay.  In  view  of  the  evidence  and  the  fact  that 
the  objection  did  not  prevail  with  the  lower  courts,  we  are 
of  opinion  that  it  should  not  prevail  now.  While  the  decree 
must  be  reversed,  our  decision  is  without  prejudice  to  any 
finding  upon  the  facts  consistent  with  the  rules  that  we  have 
laid  down. 

Decree  reversed  and  case  remitted  to  the  Circuit  Court  for 
further  proceedings. 


336  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 


SCOTT  COUNTY  MACADAMIZED  ROAD  COMPANY  v. 
STATE  OF  MISSOURI  EX  REL.  HINES,  PROSECUT- 
ING ATTORNEY  OF  CAPE  GIRARDEAU  COUNTY. 

i 

I  ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  MISSOURI. 

i 

I  No.  52.     Argued  December  7,  8, 1909.— Decided  December  20,  1909. 

Following  the  construction  given  by  the  state  court,  held  that  where 
a  charter  for  a  toll-road  provided  that  the  privileges  granted  should 
continue  fifty  years  subject  to  the  right  of  the  county  to  acquire 
it  after  twenty  years,  all  privileges  ceased  on  the  expiration  of  the 
fifty  years;  and  the  owner  of  the  franchise  was  not  deprived  of  his 
property  without  due  process  of  law,  nor  was  the  obligation  of  the 
contract  in  its  charter  impaired,  by  an  injunction,  from  further 
maintaining  toU-^ates  on  such  road. 

207  Missouri,  54,  affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edward  S.  Robert^  with  whom  Mr.  Douglas  W,  Robert 
and  Mr.  William  L.  Becktold  were  on  the  brief,  for  plaintiff  in 
error: 

A  franchise  or  charter  granted  by  a  State  to  a  quasi-public 
corporation  is  a  contract  the  obligation  of  which  cannot  be 
impaired.  St.  Clair  Turnpike  Co.  v.  Illinois,  96  U.  S.  63; 
New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650; 
New  Orleans  Waterworks  Co.  v.  Rivers,  115  U.  S.  674;  PearsaU 
V.  Great  Northern  R.  R.  Co.,  161  U.  S.  663. 

The  decision  of  a  state  court,  holding  as  a  matter  of  con- 
struction, that  a  particular  charter  or  charter  provision  does 
not  constitute  a  contract,  is  not  binding  on  this  court.  Mo- 
bile &  0.  R.  R.  Co.  V.  Tennessee,  153  U.  S.  486. 

Due  process  of  law  requires  compensation  to  be  made,  or 
secured,  to  the  owner  of  private  property  when  it  is  taken  by 


SCOTT  COUNTY  ROAD  CO.  v.  HINES.  337 

215  tJ.  S.  Argument  for  Defendant  in  Error. 

a  State  or  under  its  authority  for  public  use.  C,  N,  0.  & 
T.  P.  R.  Co.  V.  Kentucky,  115  U.  S.  321;  C,  B.  &  Q.  Ry. 
Co.  V.  Chicago,  166  U.  S.  226;  Norwood  v.  Baker,  172  U.  S. 
269. 

A  judgment  of  a  state  court,  even  if  it  be  authorized  by 
statute,  whereby  private  property  is  taken  for  the  State  or 
under  its  direction  for  public  use  without  compensation  made 
or  secured  to  the  owner,  is  wanting  in  the  due  process  of  law 
required  by  the  Fourteenth  Amendment.  Tindal  v.  Wesley, 
167  U.  S.  222;  Smyth  v.  Ames,  169  U.  S.  526. 

Corporations  are  persons  within  the  meaning  of  the  con- 
stitutional provision  forbidding  the  deprivation  of  property 
without  due  process,  as  well  as  a  denial  of  the  equal  protec- 
tion of  the  laws.  Covington  Turnpike  Co.  v.  Sandford,  164 
U.  S.  578;  Smyth  v.  Ames,  169  U.  S.  466;  People  v.  Roberts, 
171  U.  S.  658,  683;  Railway  Co.  v.  EUis,  165  U.  S.  150;  United 
States  V.  Express  Co.,  164  U.  S.  686;  Railway  v.  Beckwith,  129 
U.  S.  268;  Ghucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S. 
196;  Cooper  &c.  Co.  v.  Ferguson,  113  U.  S.  727. 

If  an  instrument  is  subject  to  two  constructions,  the  rule 
that  the  construction  most  favorable  to  the  public  should  be 
adopted  does  not  apply,  if  its  apphcation  would  obviously  de- 
feat the  legislative  intent.  A  fortiori  the  rule  has  no  applica- 
tion where  the  meaning  of  the  grant  is  clear  and  free  from 
ambiguity.  Moran  v.  Miami  Co.,  2  Black,  722;  St.  Clair 
Turnpike  Co.  v.  lUirms,  supra. 

Mr.  M.  A.  Dempsey  and  Mr.  T.  D.  Hines  for  defendant  in 
error: 

The  charter  expressly  provides  that  the  privileges  granted 
by  the  charter  shall  continue  for  fifty  years.  The  company 
and  its  franchise  to  take  tolls  therefore  expired  February  24, 
1903.    Session  Laws,  1853,  337,  338. 

The  roadbed  in  question  was  a  public  highway  established 
by  public  authority  for  public  use,  and  is  to  be  regarded  as 
a  public  easement  and  not  as  private  property.  The  right  to 
VOL.  ccxv — 22 


338  OCTOBER  TERM,  1909. 

Argument  far  Defendant  in  Error.  215  U.  S. 

travel  over  the  road  was  an  easement  vested  in  the  public, 
and  when  the  charter  expired  this  easement  continued,  dis- 
burdened of  tolls,  but  otherwise  unafifected.  State  v.  Hanni- 
bal County  Road  Co,,  138  Missouri,  332;  Campbell  on  High- 
ways, No.  8,  p.  8;  No.  14,  p.  11;  Benedict  v.  Gaity  3  Barb.  469; 
Davis  V.  New  York,  14  N.  Y.  516;  St.  Clair  Co,  Turnpike 
Co.  V.  Illinois,  96  U.  S.  63;  27  Am.  and  Eng,  Ency.  of  Law, 
320;  Pittsburg  &c.  v.  Comnumwealth,  104  Pa.  St.  583;  State 
V.  Lake,  8  Nevada,  276;  State  v.  Curry,  6  Nevada,  75;  State  v. 
Dayton,  10  Nevada,  115;  Wood  v.  Turnpike  Co.,  24  California, 
474;  Craig  v.  People,  47  Illinois,  487;  Police  v.  Jury,  44  La. 
Ann.  137;  Hayward  v.  Mayor,  8  Barb.  492;  Hooker  v.  Utica, 
12  Wend.  371;  State  v.  Passaic,  42  N.  J.  L.  524;  State  v. 
Mayor,  29  N.  J.  L.  441;  Kansas  v.  Lawrence,  22  Kansas,  438; 
Blood  V.  Woods,  95  California,  78;  People  v.  Davidson,  21 
Pac.  Rep.  538;  State  v.  Maine,  27  Connecticut,  641;  Central 
Bridge  v.  Lowell,  15  Gray,  106;  People  v.  Newburg,  86  N.  Y. 
302;  /^eo^A  v.  Barrymare,  50  N.  Y.  302. 

The  words  "perpetual  succession"  mean  continuous  suc- 
cession during  the  life  of  the  charter  only.  Of  themselves 
they  do  not  confer  perpetuity  upon  a  corporation.  The  word 
"perpetual''  qualifies  the  succession  and  not  the  duration 
of  the  corporation.  State  ex  rd.  v.  Payne,  129  Missouri,  477; 
Ralls  Co.  Case,  138  Missouri,  332. 

The  claim  of  fee  simple  to  the  roadbed  as  a  defense  is  un- 
tenable. 

No  constitutional  question  is  involved.  The  county  does 
not  seek  to  take  any  property  without  compensation  or 
without  process  of  law,  but  merely  seeks  by  process  of  law  an 
adjudication  as  to  whether  or  not  the  right  or  franchise  to 
take  tolls  has  expired. 

Injunction  is  a  proper  remedy.  This  court  is  without 
jurisdiction  to  determine  the  appeal.  There  is  no  Federal 
question  in  the  case.  Mills  v.  County  of  St.  Clair,  8  How.  567; 
Davidson  v.  New  Orleans,  96  U.  S.  97;  New  Orleans  v.  N.  0. 
Waterworks  Co.,  185  U.  S.  336;  Satterlee  v.  Matthewson,  2 


SCOTT  COUNTY  ROAD  CO.  v.  HINES.  339 

215  U.  S.  Opinion  of  the  Court. 

Pet.  380;  WaJtsm  v.  Mercer,  8  Pet.  88;  Chxirles  River  Bridge  v. 
Warren  Bridge,  11  Pet.  583;  Bank  v.  BiLckinghaniy  5  How.  317; 
Miss.  &  M.  R.  Co.  V.  Rock,  4  Wall.  177. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  suit  brought  in  pursuance  of  a  statute  to  enjoin 
the  plaintiff  in  error  from  maintaining  toll-gates  upon  a  road 
alleged  to  be  a  public  highway.  The  defendant  justifies  un- 
der a  charter  granted  by  a  special  act  of  February  24,  1853, 
which  contained  the  following  section:  "8.  The  privileges 
granted  in  this  charter  shall  continue  for  fifty  years;  pro- 
vided, that  the  county  courts  of  the  counties  of  Cape  Girar- 
deau and  Scott  may,  at  the  expiration  of  twenty  years,  or 
any  time  thereafter  purchase  said  road  at  the  actual  cost  of 
construction,  and  make  it  a  free  road.''  Mo.  Laws,  1853, 
pp.  337,  338.  The  defendant  says  that  it  has  not  received 
the  cost  of  construction,  and  sets  up  the  Constitution  of  the 
United  States,  Art.  I,  §  10,  the  Fourteenth  Amendment,'  and 
other  less  material  clauses.  The  reply  is  that  the  right  to 
take  tolls  expired  on  February  24,  1903,  when  the  fifty  years 
contemplated  by  the  charter  had  elapsed.  There  was  a  trial 
and  a  judgment  for  the  relator,  which  was  aflirmed  by  the 
Supreme  Court  of  the  State,  and  the  case  was  brought  here. 
State  ex  rd,  v.  Road  Co.,  207  Missouri,  54. 

The  plaintifif  in  error  contends  that  the  privileges  referred 
to  in  §  8  are  but  three :  the  life  of  the  corporation  brought 
into  being  by  the  charter,  the  exclusive  right  to  maintain  a 
toll-road  granted  by  §  2,  and  the  right  to  take  higher  tolls 
than  those  allowed  to  toll  companies  organized  under  a  gen- 
eral act  then  in  force;  but  that  it  cannot  be  deprived  of  its 
right  to  take  tolls  except  by  a  purchase  of  the  road  at  the 
actual  cost  of  construction.  It  says  that  the  provision  for 
the  right  to  piu'chase  at  the  expiration  of  twenty  years  'or 
at  any  time  thereafter'  imports  that  the  right  to  make  the 
road  free,  even  after  fifty  years,  can  be  gained  only  by  pur- 


340  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

chase,  and  that  the  clause  makes  a  contract  and  creates  a 
right  of  property  which  it  is  beyond  the  power  of  the  State 
to  impair  or  take  away.  The  Supreme  Court  of  Missouri 
took  a  different  view.  It  held  after  an  elaborate  discussion 
that  the  plaintiff  in  error  never  had  more  than  an  easement, 
that  this  easement  was  of  a  public  character  charged  only 
with  the  burden  of  paying  toll  during  the  time  allowed  by 
the  charter,  and  that  after  that  time  the  public  had  an  un- 
encumbered right.  The  sole  question  here  is  whether  the 
construction  of  the  charter  and  the  supposed  contract  was 
wrong. 

We  are  of  opinion  that  the  decision  of  the  state  court  was 
right,  and  that  the  meaning  of  §  8  is  so  plain  that  it  cannot  be 
made  much  clearer  by  argument.  **The  privileges  granted 
in  this  charter"  means  all  the  privileges,  including  the  priv- 
ilege of  taking  toll.  The  limitation  of  fifty  years  would  be 
almost  meaningless  if  tolls  were  not  embraced.  The  plaintiff 
in  error  recognizes  the  difficulty,  and  tries  to  meet  it  by  the 
suggestion  that  as  applied  to  tolls  the  word  '  privileges '  is  to 
be  limited  to  the  excess  of  the  tolls  allowed  above  those  men- 
tioned in  a  general  act  then  in  force.  But  the  general  act  is 
not  referred  to  in  the  section  granting  the  right  to  charge 
tolls,  or,  indeed,  in  the  charter  at  all ;  it  was  a  law  with  which 
the  specially  chartered  corporation  had  nothing  to  do.  There 
is  not  the  slightest  reason  to  suppose  that  there  was  any  im- 
plied reference  to  or  thought  of  it  when  this  act  was  passed. 
The  words  of  purchase,  'at  the  expiration  of  twenty  years, 
or  any  time  thereafter,'  do  not  convey  the  meaning  that  the 
express  limitation  of  fifty  years  is  done  away  with  in  the  same 
section  that  imposes  it,  but  must  be  read  subject  to  that 
more  specific  phrase,  even  if  'any  time  thereafter'  practically 
is  cut  down  to  any  time  within  the  fifty  years,  so  far  as  its 
value  to  the  plaintiff  in  error  is  concerned.  It  was  a  reserva- 
tion in  favor  of  the  county,  not  the  grant  of  a  new  right  to 
the  plaintiff  in  error,  and  its  operation  is  sufficient  if  as  ex- 
tensive as  the  need. 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.     341 
215  U.  S.  Argument  for  Plaintiff  in  Error. 

As  we  are  of  opinion  that  the  plaintiff  in  error  has  no  such 
rights  as  it  claims,  even  if  we  assume  that  it  has  all  the  rights 
of  the  original  corporation  created  by  the  charter,  it  is  un- 
necessary to  consider  other  difficulties  in  the  case. 

Judgment  affirmed. 


FIRST  NATIONAL  BANK  v.  CITY  COUNCIL  OF 

ESTHERVILLE. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  IOWA. 
No.  64.     Argued  December  10,  1909.— Decided  January  3,  1910. 

Where  the  validity  of  the  local  statute  under  which  national  bank 
shares  are  assessed  was  not  drawn  in  question,  but  the  only  ob- 
jection in  the  state  court  was  that  the  assessment  was  in  excess 
of  actual  value,  exorbitant,  unjust  and  not  in  proportion  with  other 
like  property,  no  Federal  right  was  set  up  or  denied  and  this  court 
has  no  jurisdiction  to  review  the  judgment  under  §  709,  Rev.  Stat. 

Writ  of  error  to  review  136  Iowa,  203,  dismissed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Charles  A.  Clark  for  plaintiff  in  error: 

The  statutes  of  Iowa,  §§  1305-1322  of  the  Code,  provide 
a  scheme  of  taxation  of  banks  by  which  the  franchises,  good 
will,  good  business  management,  dividend  earning  power, 
and  United  States  bonds  held  as  required  by  law  are  all  in- 
cluded by  force  of  the  very  statutes  themselves,  while  all  of 
these  elements  are  excluded  by  force  of  the  same  statutes, 
as  to  moneyed  capital  in  the  hands  of  individual  citizens 
and  invested  in  the  very  moneyed  institutions  which  come 
in  competition  with  national  banks. 

This  discrimination  against  national  banks  is  clearly  not 
warranted  but  forbidden  by  §  5219,  Rev.  Stat.,  and  renders 


342  OCTOBER  TERM,  1909. 

Argument  for  Plaintiff  in  Error.  215  U.  S. 

the  Iowa  system  of  taxing  national  banks  utterly  null  and 
void.  San  Francisco  Nat.  Bank  v.  Dodge,  197  U.  S.  70; 
Van  Allen  v.  Assessors,  3  Wall.  581;  Bradley  v.  The  People, 
4  Wall.  462;  People  v.  Commissioners,  94  U.  S.  418;  People 
V.  Weaver,  100  U.  S.  543;  Mercantile  Bank  v.  New  York,  121 
U.  S.  145,  152;  Owensboro  Nat.  Bank  v.  Owenshoro,  173  U.  S. 
679,  683;  Hubbard  v.  Board,  23  Iowa,  145. 

There  is  no  power  to  tax  the  shares  of  national  banks 
except  as  allowed  by  act  of  Congress,  now  §  5219,  Rev.  Stat. 
Home  Savings  Bank  v.  Des  Moines,  205  U.  S.  516;  Oioensboro 
Nat,  Bank  v.  Owensboro,  173  U.  S.  668;  People  v.  Weaver, 
100  U.  S.  539,  543;  Weston  v.  Charleston,  2  Pet.  449;  Osbom 
V.  Bank,  9  Wheat.  738;  McCvUough  v.  Maryland,  4  Wheat. 
316;  Bank  of  AUna  v.  City  Coumnl,  86  Iowa,  36,  37. 

The  assessor,  the  board  of  equaUzation,  and  the  courts  of 
Iowa,  are  no  less  bound  to  keep  within  the  sole  warrant  of 
authority  for  taxing  national  bank  shares  than  the  legislature 
itself. 

The  objections  of  plaintiffs  in  error  before  the  board  that 
the  proposed  taxation  was  "exorbitant  and  unjust,"  and 
that  the  valuation  of  shares  could  not  exceed  the  value  of 
assets,  as  in  the  case  of  state  banks,  moneyed  institutions  and 
private  banks  and  bankers,  raised,  ex  vi  termini,  questions 
as  to  the  validity  of  the  Iowa  statutes  under  §5219,  Rev. 
Stat. 

These  objections  were  all  urged  before  the  District  and 
Supreme  Courts.  The  courts  were  bound  to  take  judicial 
notice  of  the  Federal  and  state  statutes,  authorizing  the 
taxation  complained  of,  as  "matters  of  which  judicial  notice 
is  taken  need  not  be  stated  in  a  pleading."    Code,  §  3632. 

The  Supremo  Court  of  Iowa  knew  perfectly  well  that  the 
system  of  taxation  of  which  plaintiffs  in  error  complained 
was  wholly  void  under  §  5219,  Rev.  Stat.  Hubbard  v.  Board, 
23  Iowa,  145.    And  see  BavJc  v.  Dodge,  197  U.  S.  70. 

The  exercise  of  jurisdiction  by  this  court  to  protect  con- 
stitutional rights  cannot  be  declined  when  it  is  plain  that  the 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.     343 
215  U.  S.  Argument  for  Plaintiff  in  Error. 

fair  result  of  a  decision  is  to  deny  the  rights.  Rogers  v.  Alor- 
bama,  192  U.  S.  230;  Smithsonian  Institution  v.  St.  John,  214 
U.  S.  279. 

The  same  rule  applies  to  rights  arising  under  statutes  of 
the  United  States  enacted  to  protect  constitutional  rights  as 
in  the  present  instance.  Chapman  v.  Goodnow,  123  U.  S. 
540,  548;  Navigation  Co.  v.  Homestead  Co.,  123  U.  S.  552; 
McCuUmigh  v.  Virginia,  172  U.  S.  117;  Af.,  K.  &  T.  Ry.  Co. 
V.  EUiott,  184  U.  S.  530,  534;  Arrowsmith  v.  Harmoning,  118 
U.  S.  194;  Chicago  Life  Ins.  Co.  v.  Needles,  113  U.  S.  574; 
People  V.  Hoffmxin,  7  Wall.  16;  Williams  v.  Weaver,  100  U.  S. 
547;  Waite  v.  Dowley,  94  U.  S.  527;  Swope  v.  LeffingweU,  105 
U.  S.  3. 

The  jurisdiction  cannot  be  defeated  by  showing  that  the 
record  does  not  in  direct  terms  refer  to  statutory  or  con- 
stitutional provision,  nor  expressly  state  that  a  Federal  ques- 
tion was  presented.  The  true  jurisdictional  test  is  whether 
it  appears  that  such  a  question  was  decided  adversely  to  the 
Federal  right  claimed.  Murray  v.  Charleston,  96  U.  S.  432, 
441;  Crmjoell  v.  Randall,  10  Pet.  368;  Eureka  Co.  v.  Yvba 
County  Court,  116  U.  S.  410. 

The  contention  of  plaintiffs  in  error  arises  under  clause  2 
of  §  709,  Rev.  Stat.,  and  hence  need  not  be  set  up  and  claimed 
with  the  particularity  required  under  clause  3.  Water  Power 
Co.  V.  Street  Railway  Co.,  172  U.  S.  487;  Chapman  v.  Goodnow, 
123  U.  S.  527,  548. 

Where  the  Federal  question  arises  upon  the  record,  this 
court  has  jurisdiction  to  review,  although  the  state  court 
evades  a  decision  of  that  question  upon  the  ground  that  it 
was  not  argued  either  orally  or  in  print  as  its  decisions  re- 
quired, in  order  to  have  the  Federal  question  there  passed 
upon.  Des  Moines  Nav.  Co.  v.  Iowa  Homestead  Co.,  123  U.  S. 
554;  Deport  Bank  v.  Frankfort,  191  U.  S.  518,  519. 

The  Iowa  scheme  for  taxation  of  national  banks  is  null  and 
void  upon  its  face.  Home  Savings  Bank  v.  City  of  Des  Moines, 
205  U.  S.  503;  San  Francisco  Nat.  Bank  v.  Dodge,  197  U.  S.  80. 


344  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  216  U.  8. 

Under  their  general  prayer  for  relief,  plaintififs  in  error 
are  entitled  to  have  the  illegal  assessments  wholly  annulled 
and  set  aside.  Oteri  v.  Sccdzo,  145  U.  S.  578;  Tyler  v.  Savage, 
143  U.  S.  79;  Jones  v.  Van  Daren,  130  U.  S.  684. 

Iowa  decisions  are  to  same  efifect.  Pond  v.  Waterloo  dtc. 
Works,  50  Iowa,  596;  Hoshins  v.  Roive,  61  Iowa,  180;  Lavcrty 
V.  Sexton,  41  Iowa,  435;  Herring  v.  Neeiy,  43  Iowa,  157;  Hait 
V.  Ensign,  61  Iowa,  724. 

Mr.  Byron  M,  Coon  for  defendant  in  error. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the 
court. 

This  was  an  appeal  under  §  1373  of  the  Code  of  Iowa  from 
the  action  of  the  members  of  the  city  council  of  the  city  of 
Estherville,  Iowa,  sitting  as  a  board  of  equalization  and  re- 
view, in  fixing  the  assessed  value  of  the  shares  of  stock  in  the 
plaintiff  bank  for  the  year  1906.  The  shares  of  stock  in  the 
plaintiff  bank  were  assessed  by  the  assessor  on  the  basis  of 
the  book  or  assessed  value  obtained  by  adding  the  capital, 
surplus  and  undivided  profits  of  the  bank  and  dividing  the 
sum  total  by  the  number  of  shares  of  capital  stock  to  ascertain 
the  value  of  one  share,  a  proper  deduction  having  been  made 
on  account  of  real  estate  owned  by  the  bank.  The  Board  of 
Review  and  Equalization  raised  the  assessed  valuation  of  the 
shares  to  $130  per  share.  The  bank  and  its  shareholders  ap- 
peared before  the  Board  and  objected  to  its  action  and  to  the 
valuation  fixed  by  them  as  being  in  excess  of  the  actual  value, 
and  exorbitant  and  unjust.  The  bank  contended  that  the 
stock  was  not  assessed  and  valued  in  proportion  to  other  like 
personal  property  in  the  city  of  Estherville,  but  was  grossly 
in  excess  thereof,  and  constituted  unfair  and  imequal  taxa- 
tion, and  that  the  taxable  value  of  the  shares  of  the  stock  in 
the  bank  should  be  found  as  the  assessor  had  previously  found 
it.  But  the  Board  adhering  to  its  own  judgment,  plaintiffs 
perfected  an  appeal  to  the  District  Court  of  Emmett  County, 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.      345 

215  U.  S.  Opinion  of  the  Court. 

Iowa.  In  that  court  plaintiffs  filed  a  pleading  containing  a 
recital  of  the  facts  and  demanding  relief,  and  reiterating  the 
same  contention  as  made  below  and  the  same  claim  as  to  the 
proper  manner  to  arrive  at  the  assessable  valuation  of  said 
shares  of  stock.  Answer  was  filed  in  behalf  of  the  Board, 
wherein  it  was  denied  that  the  assessment  as  raised  was 
unjust,  and  asserted  that  the  market  value  was  the  proper 
criterion  for  valuation,  and  that  the  actual  and  market  value 
of  the  stock  in  question  was  even  greater  than  that  fixed  in 
the  raised  assessment.  It  was  also  denied  that  the  assessment 
was  unfair  as  related  to  the  assessment  on  other  like  property. 

The  District  Court  sustained  the  action  of  the  Board  of 
Review,  whereupon  the  case  was  appealed  to  the  Supreme 
Court  of  Iowa,  which  aflSrmed  the  decree  of  the  District  Court. 
First  Nat.  Bank  v.  EsthervUle,  136  Iowa,  203.  In  the  Supreme 
Court  it  was  contended  for  the  first  time  that  the  action  of 
the  Board  worked  a  violation  of  §  5219  of  tlie  United  States 
Revised  Statutes,  touching  upon  state  taxation  of  National 
Bank  shares.  Because  of  the  fact  that  such  matter  was  not 
presented  to  the  Board  or  suggested  on  the  trial  in  the  court 
below,  the  Supreme  Court  refused  to  entertain  the  question. 
What  the  court  said  was  this  (p.  206) : 

"In  doing  so  we  shall  first  dispose  of  a  matter  of  conten- 
tion brought  forward  for  the  first  time  in  argument  in  this 
court.  This  contention  is  through  the  action  of  the  defendant 
board  as  complained  of,  there  was  worked  a  violation  of 
§  5219  of  U.  S.  Revised  Statutes,  having  to  do  with  the  sub- 
ject of  state  taxation  of  national  shares.  As  confessedly  such 
matter  was  not  presented  to  the  board,  or  suggested  on  the 
trial  in  the  court  below,  we  cannot  give  consideration  thereto 
on  merits  in  this  court.  And  this  is  to  follow  our  repeated  de- 
cisions bearing  on  the  subject.  RaUvxiy  Co.  v.  Cedar  Rapids, 
106  Iowa,  476;  Trust  Co.  v.  Fonda,  114  Iowa,  728." 

And  further  (p.  208) : 

"On  appeal  to  the  District  Court  the  statute  (Code,  §  1373) 
provides  for  a  hearing  as  in  equity.    This,  however,  is  not  to 


346  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  S. 

be  construed  as  clothing  the  court  with  jurisdiction  to  sit  as 
an  assessing  tribunal.  Frost  v.  Boards  114  Iowa,  103;  Farmers' 
&c.  Co,  V.  Fonda,  114  Iowa,  728.'' 

We  are  met  at  the  threshold  by  a  motion  to  dismiss  for 
want  of  jurisdiction.  It  was  ruled  in  Tyler  v.  Judges  of 
Registration^  179  U.  S.  405,  408,  that  although  "it  is  true  that 
under  the  third  clause  of  §  709,  Rev.  Stat.,  where  a  title, 
right,  privilege,  or  immunity  is  claimed  under  Federal  law, 
such  title,  etc.,  must  be  'specially  set  up  or  claimed'  and  that 
no  such  provision  is  made  as  to  cases  within  the  second  clause, 
involving  the  constitutionality  of  state  statutes  or  authorities, 
but  it  is  none  the  less  true  that  the  authority  of  such  statute 
must  'be  drawn  in  question'  by  some  one  who  has  been  af- 
fected by  the  decision  of  the  state  court  in  favor  of  its  validity, 
and  that  in  this  particular  the  three  clauses  of  the  section  are 
practically  identical." 

In  order  to  give  this  court  jurisdiction  of  a  writ  of  error 
to  the  highest  court  of  a  State  in  which  a  decision  could  be 
had  it  must  appear  affirmatively  that  a  Federal  question  was 
presented  for  decision,  that  its  decision  was  necessary  to  the 
determination  of  the  cause,  and  that  it  was  actually  decided 
or  that  the  judgment  rendered  could  not  have  been  given 
without  deciding  it. 

The  only  complaint  made  before  the  reviewing  board  and 
the  District  Court  was  that  the  assessment  was  in  excess  of 
the  actual  value  of  such  stock  and  exorbitant  and  unjust,  and 
that  the  taxable  value  thereof  should  be  no  greater  sum  than 
is  obtained  by  adding  the  capital,  surplus  and  undivided 
profits  of  said  bank,  subtracting  therefrom  the  amount  of  the 
bank's  capital  invested  in  real  estate,  and  dividing  the  re- 
mainder by  the  number  of  its  shares  of  capital  stock  to  obtain 
the  true  assessable  value  of  one  share  of  stock;  also  that  "said 
stock  is  not  assessed  and  valued  in  proportion  to  other  like 
personal  property  in  the  city  of  Estherville,  but  is  grossly  in 
excess  thereof,  and  unfair  to  these  appellants  and  is  unequal 
taxation." 


FIRST  NATIONAL  BANK  v.  ESTHERVILLE.      347 
215  U.  S.  Opinion  of  the  Court. 

These  were  not  Federal  questions.  No  mention  of  the 
national  banking  act  was  made,  nor  any  right  or  privilege 
claimed  under  it,  nor  were  the  provisions  of  the  Revised 
Statutes  invoked  by  name  or  otherwise.  There  was  no  asser- 
tion of  an  issue  in  the  case  claiming  the  local  statutes  to  be  in 
conflict  with  or  repugnant  to  the  terms  of  §5219  of  the 
Revised  Statutes,  or  the  Constitution  of  the  United  States. 
Plaintiffs  filed  a  written  pleading  in  the  District  Court,  in 
which  they  set  out  all  proceedings  leading  up  to  the  appeal 
and  the  grounds  for  their  complaint  against  the  action  of  the 
equalization  board,  and  when  the  case  went  to  trial  filed  an 
amendment,  alleging  the  additional  grievance  of  inequaUty. 
Section  1322  of  the  Iowa  Code  reads  as  follows : 
"National,  state  and  savings  banks. — Shares  of  stock  of 
national  banks  shall  be  assessed  to  the  individual  stock- 
holders at  the  place  where  the  bank  is  located.  Shares  of 
stock  of  state  and  savings  banks  and  loan  and  trust  com- 
panies shall  be  assessed  to  such  banks  and  loan  and  trust 
companies  and  not  to  the  individual  stockholders.  At  the 
time  the  assessment  is  made,  the  officers  of  national  banks 
shall  furnish  the  assessor  with  a  Ust  of  all  the  stockholders 
and  the  number  of  shares  owned  by  each,  and  he  shall  list 
to  each  stockholder  under  the  head  of  corporation  stock  the 
total  value  of  such  shares.  To  aid  the  assessor  in  fixing  the 
value  of  such  shares,  the  corporations  shall  furnish  him  a 
verified  statement  of  all  the  matters  provided  in  the  preced- 
ing section,  which  shall  also  show,  separately,  the  amount  of 
capital  stock,  and  the  surplus  and  undivided  earnings,  and 
the  assessor,  from  such  statement  and  other  information  he 
can  obtain,  including  any  statement  furnished  to  and  informa- 
tion obtained  by  the  auditor  of  state,  which  shall  be  furnished 
him  on  request,  shall  fix  the  value  of  such  stock,  taking  into 
account  the  capital,  surplus  and  undivided  earnings.  In 
arriving  at  the  total  value  of  the  shares  of  stock  of  such  cor- 
porations, the  amount  of  their  capital  actually  invested  in 
real  estate  owned  by  them  and  in  the  shares  of  stock  of  cor- 


348  OCTOBER  TERM,  1909. 

Opinion  of  the  Court.  215  U.  8. 

porations  owning  only  the  real  estate  (inclusive  of  leasehold 
interest,  if  any)  on  or  in  which  the  bank  or  trust  company  is 
located,  shall  be  deducted  from  the  real  value  of  such  shares, 
and  such  real  estate  shall  be  assessed  as  other  real  estate,  and 
the  property  of  such  corporations  shall  not  be  otherwise 
assessed." 

But  the  court  held  that  the  assessor  need  not  rely  entirely 
upon  the  statements  which  the  bank  is  required  by  the  section 
to  furnish,  but  might  take  into  consideration  other  informa- 
tion he  might  obtain,  and,  construing  that  section  in  connec- 
tion with  §  1305  of  the  Code  of  Iowa  reading,  "All  property 
subject  to  taxation  shall  be  valued  at  its  actual  value.  .  .  . 
Such  assessed  value  shall  be  taken  and  considered  as  the  tax- 
able value  of  such  property,  upon  which  the  levy  shall  be 
made.  Actual  value  of  property  as  used  in  this  chapter  shall 
mean  its  value  in  the  market  in  the  ordinary  course  of  trade," 
found  that  the  shares  should  be  assessed  at  their  market 
or  sale  values,  and  then  the  court  proceeded  to  ascertain,  on 
the  facts,  whether  t